THE    LAW 


THE  TERRITORIES. 


PHILADELPHIA: 

PRINTED  BY  C.  SHERMAN  &  SON. 
1859. 

UHRAKV 

JLG8ISBKSITY  OF  CALIFORNIA 
PAYI3 


Entered,  according  to  Act  of  Congress,  in  the  year  1859, 

BY   C.    SHERMAN   &   SON, 
lu  the  Clerk's  Office  of  the  District  Court  for  the  Eastern  District  of  Pennsylva 


CONTENTS. 


PAGE 

PREFACE,  ....  v 

THE  TERRITORIES  AND  THE  CONSTITUTION,  .  .  25 

POPULAR  SOVEREIGNTY  IN  THE  TERRITORIES,      .  .        87 


PREFACE. 


THE  first  of  the  two  essays  in  this  volume  was  begun 
with  the  intention  of  making  it  an  article  for  the  North 
American  and  United  States  Gazette,  of  this  city.  The 
subject,  however,  expanded  before  the  author  as  he  ad 
vanced,  and  grew,  as  he  followed  its  lead,  to  a  size  too 
large  for  a  newspaper.  The  second  essay,  on  "  Popular 
Sovereignty  in  the  Territories,"  was  published  in  the 
above-named  Journal,  February  24th,  1858,  with  the 
signature  of  Cecil,  and  formed  one  of  a  series  of  essays 
on  Southern  politics,  for  which  the  courtesy  of  the  Edi 
tor  of  that  paper  allowed  the  author  the  use  of  his  columns. 
The  two  are  now  presented  to  the  public  in  the  present 
shape,  in  the  hope  that,  if  the  principles  they  assert  and 
attempt  to  explain  are  correct,  they  may  be  of  some  use 
in  guiding  opinion  on  a  subject  of  great  importance,  the 
discussion  of  which  is  likely,  at  this  moment,  to  excite 
general  interest. 

Some  weeks  after  the  last  written  of  these  essays  was 


VI  PREFACE. 

finished,  an  event  occurred  which  has  given  increased  sig 
nificance  to  the  topics  they  treat.  A  band  of  some  fifteen 
to  twenty  desperate  men  surprised  the  village  of  Harper's 
Ferry,  seized  on  the  United  States  Arsenal,  made  prisoners 
of  a  number  of  prominent  gentlemen  in  the  neighborhood, 
stopped  the  railway  trains,  and  placed  themselves,  after 
committing  these  outrages,  in  an  attitude  of  defiance  to 
the  law  and  its  officers.  This  extraordinary  feat  was  per 
formed  by  fifteen  white  men  and  four  negroes.  As  soon 
as  news  of  it  could  be  known,  troops  were  promptly  sent  to 
the  scene  of  action  by  the  President  of  the  United  States, 
by  the  Governor  of  Virginia,  and  by  the  State  of  Mary 
land.  After  a  short  conflict,  in  which,  however,  several 
lives  were  sacrificed,  the  insurgents  were  captured  and 
taken  to  a  town  in  Virginia  for  trial.  Upon  this  trial 
the  eyes  of  the  nation  are  now  fixed.  Its  progress  is 
reported  in  every  newspaper  throughout  the  land.  The 
place  where  it  is  conducted  is  like  a  garrisoned  town.  The 
wounded  prisoner,  the  leader  of  the  band,  is  escorted  to 
and  from  the  court-house  by  a  military  guard.  Alarm 
reigns  throughout  the  State  of  Virginia  and  adjacent 
country,  whose  citizens  are  arming  spontaneously,  and 
whose  magistrates  are  holding  counsel  over  the  public 
safety.  That  nineteen  men,  by  conduct  however  violent, 
should  be  able  to  excite  such  wide  consternation  and  in 
duce  preparations  so  large  and  instant,  may  seem  very 
surprising.  Our  cities  are,  unhappily,  often  the  scenes 


PREFACE.        ,  Vll 

of  conflicts  as  serious,  which  are  dealt  with  by  the  local 
police,  and  speedily  forgotten.  The  fights  and  riots  of 
the  rowdy  clubs  in  Baltimore  alone,  appear  more  momen 
tous  things  in  comparison.  The  excitement,  the  means 
of  defence  employed,  and  the  interest  created  at  a  dis 
tance,  seem  out  of  all  proportion  to  the  event,  until  its 
true  character  is  understood ;  but  all  surprise  vanishes 
the  moment  it  is  known  that  the  purpose  of  this  little 
band  of  misguided  men  was  to  produce  an  insurrection  of 
the  slaves.  If  the  laborers  in  a  powder  factory  were  seen 
to  fly  the  building  on  the  entrance  of  a  single  man,  or  to 
rush  on  him  with  frantic  haste  to  put  him  out,  no  one 
would  wonder  at  their  conduct  if  told  that  he  had  a  cigar 
in  his  mouth.  The  affair  at  Harper's  Ferry  therefore  re 
veals  a  danger  inherent  in  Southern  society.  The  danger 
must  be  real,  or  such  terror  and  active  vigilance  could 
not  have  been  excited  in  a  community  proverbially  high- 
spirited  and  brave,  by  a  cause  otherwise  so  insignificant. 
The  people  of  the  South  are  like  the  crew  of  a  ship  of 
war.  They  carry  with  them  a  magazine  of  explosive 
matter,  which  must  be  carefully  guarded  from  even  a 
casual  spark. 

But  this  event,  in  its  causes  and  surrounding  circum 
stances,  has  other  meanings  of  grave  national  interest. 
Deplorable  in  itself,  it  is  by  no  means  an  isolated  fact, 
growing  out  of  nothing  and  related  to  nothing.  To  regard 
it  as  the  mere  desperate  freak  of  a  madman,  the  powerless 


Vlll  .       PREFACE. 

conception  of  one  crazed  brain,  would  be  greatly  to  mistake 
its  character.  It  is  connected  with  the  past,  its  true 
nature  is  displayed  in  the  facts  by  which  it  was  accompa 
nied,  and  in  the  scenes  of  the  passing  hour,  and  it  is 
connected,  also,  with  the  future,  for  good  or  for  evil,  as 
it  shall  be  managed,  and  as  the  lessons  it  teaches  shall  be 
understood. 

One  important  fact  in  the  case  is,  that  the  motives  and 
purposes,  the  ideas  and  passions,  which  prompted  the 
extravagant  enterprise  of  Brown,  find  sympathy  and  ap 
proval  in  a  portion  of  Northern  opinion.  Whether  he  was 
aided  and  abetted  by  Northern  men  of  influence  in  this 
particular  deed,  as  asserted,  remains  to  be  seen ;  nor  is  it 
of  much  consequence  in  a  general  point  of  view.  The 
startling  and  dangerous  fact  that,  in  some  of  the  Northern 
States,  numbers  sufficiently  large  to  have  political  and 
social  power,  to  form  constituencies,  to  exercise  the 
sway  of  educated  opinion,  do,  with  more  or  less  earnestness 
and  enthusiasm,  approve,  if  not  of  his  act,  of  the  feelings 
and  principles  that  led  him  to  act;  do  regard  him  as  a 
martyr  in  a  just  cause,  and  would  have  rejoiced  had  he 
been  successful,  this  fact  is  beyond  dispute,  and,  how 
ever  painful  or  alarming,  it  is  well  to  look  it  in  the  face. 
Influential  men,  members  of  Congress,  candidates  for  office, 
conductors  of  widely-circulating  journals ;  men  represent 
ing  and  guiding,  and  able  to  inflame  a  portion  of  public 
opinion,  are  among  this  number;  and  they  are  at  this 


PREFACE.     »  IX 

moment  engaged,  by  nightly  lectures  and  harangues  in 
Northern  cities,  and  by  newspaper  discussions,  in  appeal 
ing  to  the  reason,  the  sympathies  and  passions  of  the 
people.  It  must  be  confessed  that  all  this  fire  of  feeling 
and  of  rhetoric  is  no  safe  neighbor  for  the  powder  magazine. 
No  one  can  tell  when  or  where  or  how  a  spark  may  be 
blown  into  it,  or  the  frenzy  of  fanaticism  may  be  incited 
to  hurl  a  torch  at  it,  as  Brown  did ;  or,  indeed,  whether 
even  the  distant  din  and  concussion  of  all  this  turmoil, 
may  not,  by  mysterious,  electric  sympathy,  cause  the  spon 
taneous  combustion  of  the  sensitive,  fulminating  stuff 
which  forms  the  foundation  of  Southern  society.  It  is 
clear  that  it  is  of  vital  importance  for  the  Southern  people 
to  have  good  neighbors ;  friends,  not  enemies ;  nay,  if 
possible,  allies  and  brethren — shipmates,  interested,  like 
themselves,  in  keeping  the  powder  secure.  A  small 
number  of  Northern  enemies  is  no  safe  thing  for  them. 
We  have  just  seen  that  fifteen  desperate  men,  their  heads 
full  of  the  most  absurd  theories,  their  hearts  full  of  the 
wildest  passions,  were  sufficient  to  strike  no  vain  or  weak 
terror  into  the  State  of  Virginia,  and  make  her  gird  on 
her  sword  in  hot  haste  to  meet  a  pressing  danger.  Who 
can  say  that  had  Brown  been  successful  in  rousing  the 
Negroes,  had  made  a  stand  but  for  a  single  day,  thousands 
would  not  have  crossed  the  border  to  join  him,  with  what  re 
sults  of  wide-spread  mischief,  is  more  easy  than  pleasant  to 
imagine  ?  And  if  a  handful  of  poor,  ignorant,  and  lawless 


X  ,      PREFACE. 

men,  are  able  to  cause  such  perils,  what  effect  would  an  army 
marching  with  legal  banners,  on  a  similar  errand,  produce  ? 
Disunion  is  a  word  of  fear.  Is  it  not  strange  that  it  should 
have  been  as  yet  pronounced  only  by  the  South  ? 

The  danger  of  insurrection  and  servile  war  belongs  to 
the  nature  of  slavery.  In  a  country  thinly  settled,  of  large 
plantations  and  farms,  and  widely  separated  dwellings, 
where  six  millions  of  one  race  hold  four  millions  of  another 
race  in  subjection,  and  the  two  are  interspersed  and  mingled 
together,  there  is  risk  at  all  times.  It  is,  perhaps,  not  too 
much  to  assert,  that  the  safety  and  tranquillity  of  Southern 
society  depend  on  the  fact  that  the  Northern  people  are 
close  at  hand  to  aid  in  case  of  need,  that  the  power  of  the 
General  Government  is  ever  ready  for  the  same  purpose. 
Four  millions  of  barbarians,  growing  with  tropical  vigor, 
and  soon  to  be  eight  millions,  with  tropical  passions  boiling 
in  their  blood,  endowed  with  native  courage,  with  sinews 
strung  by  toil  and  stimulated  by  the  hope  of  liberty  and 
unbounded  license,  are  not  to  be  trifled  with.  Take  away 
from  them  the  idea  of  an  irresistible  power  in  the  North, 
ready  at  any  moment  to  be  invoked  by  their  masters,  or  let 
them  expect  in  the  North,  not  enemies,  but  friends  and 
supporters,  which  even  now  they  are  told  every  day  by  these 
masters  they  may  expect,  and  how  soon  might  a  flame  be 
lighted,  which  no  power  in  the  South  could  extinguish.  If 
the  South  could  be  separated,  geographically,  from  the 
North,  standing  armies  and  a  complete  military  organization 


PREFACE.  XI 

would  at  once  become  essential  for  its  safety,  and  even  these 
would  be  a  doubtful  protection  from  an  insidious  danger, 
lurking  in  every  home,  and  ever  ready  to  be  roused  by  the 
very  precautions  taken  against  it.  Slavery  could  not  be 
maintained  in  Cuba  but  for  the  power  of  Spain.  Had 
England  withdrawn  her  protection  from  her  West  India 
Islands,  the  negroes  would  have  emancipated  themselves. 
When  the  government  of  France  proclaimed  opinions  hos 
tile  to  slavery,  St.  Domingo  became  Hayti.  Withdraw  from 
the  South  the  invisible  support  which  Northern  strength 
gives  to  slavery,  and  Southern  society  would  be  in  danger. 
Convert  this  Northern  strength  into  an  enemy,  and  at  once, 
throughout  the  fertile  and  peaceful  regions  of  the  South, 
would  arise  a  household  horror,  a  fireside  foe,  a  domestic 
terror  more  dreadful  than  war.  War  has  its  laws,  its 
amenities,  its  mercies.  It  can  be  met  in  manful  battle;  it- 
can  be  stopped  by  honorable  submission ;  it  spares  the  young 
and  the  aged,  the  sick  and  the  feeble ;  it  respects  female 
honor ;  it  commits  no  useless  devastation  ;  it  does  not  over 
throw  law  and  government.  But  a  servile  insurrection, 
brute  force  unchained,  brute  passion  stimulated  by  license 
and  revenge,  the  tropical  fury  of  the  negro,  of  the  mere 
animal  man,  let  loose  upon  the  wealth  and  refinement  of  a 
civilized  and  polished  community,  who  shall  describe  the 
miseries,  the  manifold  horrors  of  such  a  scourge  ?  Almost 
as  great  an  evil  as  a  servile  war,  is  the  constant  dread  of  it. 
When  danger  dwells  under  a  man's  roof,  when  his  servants 


Xll  PREFACE. 

and  laborers  may  be  his  enemies,  whom  it  is  unsafe  even 
to  seem  to  distrust,  the  sense  of  security  which  govern 
ments  and  laws  are  intended  to  produce,  is  destroyed.  The 
enjoyment  of  life  vanishes,  all  plans,  purposes,  and  thoughts 
become  absorbed  in  the  one  dominant  idea  of  self-preserva 
tion,  and  society  is  ruled  by  a  pervading  terror.  Such  a 
society  cannot  prosper,  cannot  live.  Industry,  business, 
wealth,  require  the  shelter  of  peace  and  order,  and  confi 
dence  in  the  stability  of  these.  Capital,  the  most  timid  of 
all  things,  which  scents  peril  from  afar,  and  "  shuts  its 
coward  gates  on  atomies,"  would  quickly  fly  to  safer  re 
gions  for  investment,  and  its  owners  would  fly  along  with 
it.  Love  of  country  is  strong,  but  love  of  life,  love  of 
family,  are  stronger.  All- men  who  had  the  means  would, 
when  the  risk  became  serious,  gather  together  what  they 
were  able  of  their  estates  and  escape  from  a  danger,  which 
hovers  over  the  hours  of  privacy  and  the  scenes  of  domes 
tic  enjoyment,  from  an  enemy  with  whom  there  can  be  no 
combat  or  treaty  of  peace,  and  which,  if  not  entirely  sub 
dued  and  subjected,  threatens  evils  worse  than  death.  At 
length  the  white  race,  weakened,  impoverished,  dispirited, 
and  demoralized,  would  fall  an  easy  prey  to  the  Negro,  which 
has  struck  its  roots  so  deeply  into  our  soil,  and  grows  on 
it  with  African  vigor  and  luxuriance.  It  would  be  far 
better  in  all  respects  for  the  South  to  emancipate  the  slaves 
at  once,  and  convert  them  into  free  laborers,  working  for 
hire,  than  to  live  in  fear  of  them.  Emancipation  would 


PREFACE.  XU1 

be  a  very  doubtful  experiment  for  both  races,  however  gra 
dual  and  carefully  guarded.  Slavery  with  us  is  a  mild  in 
stitution  and  its  yoke  is  easy.  Under  its  generally  kind 
and  wholesome  rule,  the  Negro  flourishes,  is  industrious, 
temperate,  orderly,  and  well  cared  for,  at  least  in  physical 
well-being.  He  could  not  take  as  good  care  of  himself. 
With  it,  too,  the  South  increases  in  wealth  and  power,  and 
enjoys  the  blessings  of  peace  and  security.  It  would  be 
rash  and  foolish  and  wicked,  in  the  hope  of  realizing  ideal 
visions,  and  to  carry  out  to  extreme  conclusions  the  theories 
of  abstract  reasoning,  to  risk  so  much  actual,  practical  good, 
so  long  as  this  state  of  things  continues.  But  ideas  have 
a  subtle  force,  and  find  their  way  even  into  the  mind  of  a 
Negro.  No  laws  or  guards  can  keep  them  out,  or  prevent 
their  working  after  their  kind,  that  is,  producing  action, 
after  they  get  in.  Should  the  idea  that  he  is  wrongfully 
a  slave,  and  with  it  the  spirit  of  insubordination,  <ever  enter 
that  dim  region,  the  Negro  intellect,  and  pervade  it ;  should 
it  ever  happen  that  not  love,  not  duty,  not  fidelity,  but 
simply  fear,  shall  hold  him  in  subjection,  then  this  man- 
merchandise  of  the  Supreme  Court  will  prove  that  it  is 
human  and  linked  by  moral  ties  with  humanity,  by  inspir 
ing  the  distrust  of  which  it  is  the  object.  No  society  can 
be  founded  on  fear.  Not  iron  fetters,  but  the  golden  chain 
of  mutual  confidence,  of  reciprocal  benefit,  is  necessary  to 
secure  the  obedience  even  of  the  Negro,  and  make  him,  four 
millions  strong,  a  safe  companion  for  the  white  race.  The 

2 


XIV  PREFACE. 

moment  he  becomes  really  dangerous,  emancipation  would 
be  the  only  refuge  for  the  South.  Southern  society  could 
exist;  could  enjoy  tranquillity,  might  even  prosper  after 
emancipation,  just  as  the  British  West  Indies  have  existed 
after  it,  and,  according  to  late  accounts,  have  prospered. 
If  we  may  believe  a  recent  article  in  the  Edinburgh  Re 
view  (April,  1859),  the  revenues  of  the  islands  have  in 
creased,  the  estates  of  the  planters  improved  in  productive 
ness  and  value,  and  the  negroes,  instead  of  becoming,  as 
generally  anticipated  and  reported,  lazzaroni  or  banditti, 
fast  relapsing  into  African  barbarism,  are  now  an  indus 
trious,  orderly,  contented,  and  thriving  peasantry.  If  this 
be  true,  the  fact  is  most  important,  and  of  deep  interest  to 
the  moralist  and  social  philosopher,  though  of  no  practical 
value  in  the  politics  of  our  country,  as  the  subject  is  beyond 
the  control  of  the  Government.  But  there  is  no  middle 
course.  The  negroes  must  be  either  free  or  absolutely  and 
securely  slaves.  As  the  qlTTTrrtinn  of  emancipation  cannot 
be  tried  or  even  discussed  by  our  Government ;  as  an  illegal 
attempt  to  make  it  would  produce  evils,  compared  with 
which  all  the  evils  of  slavery,  real  or  imputed,  are  bless 
ings,  it  may  be  stated  as  a  condition  absolutely  essential  to 
the  safety  of  the  South  and  of  all  the  vast  interests  that 
depend  on  it,  that  slavery  be  there  so  established  and 
guarded,  that  it  may  inspire  no  dread;  that  the  two  races 
may  live  together  in  this  relation  without  suspicion  or  fear; 
the  one  exercising  just  authority  and  kind  protection,  the 


PREFACE.  XV 

other  yielding  cheerful  obedience  and  faithful  service,  con 
trolled  moreover  by  a  wholesome  conviction  that  resistance 
or  revolt  is  hopeless. 

Under  this  state  of  things  the  South  has  prospered. 
Under  no  other  is  healthy  life  possible  for  it.  It  is  im 
possible  for  the  Southern  people  to  hold  four  millions  of 
Negroes  as  slaves,  with  the  North  as  an  enemy.  Civil 
war  would  light  the  flames  of  servile  war  throughout  the 
South.  Even  without  disunion,  it  is  impossible  that  the 
security  and  confidence  essential  to  the  industry,  wealth, 
and  happiness  of  civilized  society,  can  exist  in  the  South, 
if  a  considerable  part  of  the  Northern  people  are  mis 
chievously  bent  on  exciting  discontent,  extravagant  hopes, 
and  the  disposition  to  rebellion,  among  the  Negroes.  The 
spirit  of  insubordination  is  inconsistent  with  the  feeling  of 
security.  Society  cannot  exist  if  palsied  by  a  vague, 
indeterminate  and  constant  dread  of  nameless  horrors, 
haunting  the  fireside.  It  is  a  difficult  thing  to  realize 
the  truth  that  this  danger  does  now  exist  in  our  country. 
It  has  been  suddenly  revealed  by  the  tragedy  at  Harper's 
Ferry.  Every  newspaper  teems  with  the  proof  of  it.  It 
is  a  fact,  to  be  confronted  and  dealt  with,  that  there  is  a 
body  of  men  in  the  Northern  States,  formidable  for  its 
numbers,  wealth,  social  influence,  political  power,  talents, 
and  zeal,  willing  to  diffuse  among  the  negroes  ideas  and 
aspirations  inconsistent  with  their  position  as  slaves ;  will 
ing  to  afford  them  encouragement  and  sympathy,  and  the 


XVI  PREFACE. 

expectation  of  support,  if  not  actual  physical  aid,  in  re 
sistance  and  revolt.  These  men  are  able,  if  they  cannot 
be  checked,  to  destroy  the  South, — to  destroy  the  Nation. 
It  is,  therefore,  clear  that  the  security  of  slavery,  and 
with  it  of  Southern  society,  depends  on  the  friendship  of 
the  North,  which  is  its  close  neighbor,  and  must  ever 
remain  so,  either  as  a  friend  or  an  enemy.  In  other 
words,  slavery  depends  on  the  opinion  which  the  Northeni 
people  may  have  of  it.  If  they  thought  about  it  as  the 
Southern  people  do,  it  would  be  in  no  danger  whatever ; 
and  the  nearer  the  sentiments  of  North  and  South  on  this 
subject  can  be  brought  together,  the  better  for  the  interests 
of  slaver}-.  The  extraordinary  thing  is,  that  notwithstand 
ing  this  obvious  truth,  the  conduct  of  Southern  politicians 
seems  to  have  been  purposely  intended  for  some  years  past 
to  make  the  South  and  Slavery  as  odious  as  possible  to  the 
Northern  people.  The  repeal  of  the  Missouri  Compromise 
let  loose  the  spirit  of  discord,  which  that  wise  and  just  law 
had  quelled.  An  exciting  question  which  had  been  set 
tled  was  opened,  the  demon  of  sectional  passion  was 
needlessly  roused  from  its  repose,  and  Kansas  was  offered 
to  contending  parties  as  an  arena  for  their  strife — Kansas, 
whence  slavery  is  banished  by  the  laws  of  Nature  herself. 
The  contest  which  then  took  place  fixed  upon  that  wild 
and  remote  region  the  eyes  of  the  Nation.  The  whole 
people  sympathized  with  one  side  or  the  other,  and  fol 
lowed  the  progress  of  the  struggle  with  eager  interest. 


PREFACE.  XV11 

The  real  conflict  was  soon  transferred  from  Kansas  to  the 
elections  throughout  the  country  and  to  Washington.  The 
events  occurring  in  Kansas  were  quickly  merged  in  the 
principles  they  involved ;  the  quarrels  and  fights  and  re 
spective  merits  of  the  rude  settlers  and  the  ruder  Mis- 
sourians,  lost  their  importance  when  compared  with  the 
conduct  of  political  parties  and  of  public  men.  Then 
followed  in  rapid  succession,  the  assault  on  Mr.  Sumner, 
the  invasion  of  Kansas  by  Missourians,  the  fraudulent 
election  of  a  Territorial  Legislature,  the  infamous  laws 
of  that  Legislature,  the  decision  in  the  case  of  Dred 
Scott,  and,  finally,  the  Lecompton  Constitution,  by  which 
an  attempt  was  made  to  force  Slavery  on  the  people 
of  Kansas  against  their  consent ; — all  of  these  either 
the  acts  of  Southern  politicians  and  their  adherents, 
Northern  Democrats,  or  approved,  applauded,  ratified,  sup 
ported  and  used  by  them  for  party  and  sectional  purposes. 
They  were  all  violations  of  constitutional  law,  of  settled 
usage,  of  moral  obligations,  and  of  principles  dear  to  the 
American  heart.  They  were  all  caused  by  Slavery.  They 
were  all  intended  to  gain  power  for  Slavery  and  the  South. 
They  were  all  prompted  by  Southern  men  for  Southern 
interests  and  designs.  They  excited  just  and  general  in 
dignation  among  the  Northern  people.  Is  it  surprising  that 
this  feeling  should,  with  many,  be  turned  against  Slavery 
itself,  against  the  South,  which  the  authors  and  supporters 
of  these  outrages  professed  to  represent  ?  Is  it  surprising, 


XV111  PKEFACE. 

when  the  civil  rights  of  Americans  were  violated  for  the 
sake  of  Slavery,  that  Slavery  should  become  hateful  to  some 
of  them  ?  That,  when  the  breaking  of  laws,  when  violence 
and  bloodshed,  were  aided  and  abetted  and  cheered  by 
Southern  politicians  for  Southern  purposes,  resentment 
should  be  directed  to  the  South  ?  By  these  misdeeds  the 
friends  of  the  South  were  cooled  and  its  enemies  heated 
throughout  the  North.  The  mouths  of  its  advocates  were 
shut,  and  arguments  not  easily  answered  supplied  to  its  foes. 
Enthusiasts  against  Slavery  became  fanatics;  moderate  men, 
enthusiasts,  and  the  ranks  of  its  ancient  and  faithful  ad 
herent, — the  Democratic  party, — were  thinned  by  this 
fatal  and  reckless  course  of  passion  and  folly  and  crime, 
which  none  could  approve  and  few  venture  to  defend. 
This  is  the  real  origin  and  cause  of  the  deplorable  event 
at  Harper's  Ferry.  The  desperate  design  of  Brown  was 
conceived  amid  the  border  warfare  of  Kansas.  It  was 
nourished  and  grew  into  a  settled  purpose  and  plan  in  the 
atmosphere  of  passion  there  excited,  and  was  stimulated 
by  the  injuries  he  suffered.  Revenge  mingled  with  his 
fanaticism  and  pushed  it  on  to  action.  But  he  was  not 
alone  in  the  feeling,  though  alone  in  the  act.  The  senti 
ment  which  impelled  him  was  shared  by  many  in  less 
degree,  and  now,  when  he  has  failed  and  is  sentenced  to 
death,  his  blind  enthusiasm,  his  wild  and  extravagant 
opinions  and  hopes,  still  animate  thousands,  who  regret 
his  fate,  sympathize  in  his  principles,  and  would  have 


PREFACE.  XIX 

exulted  in  his  success.  This  dangerous  flame  of  passion 
and  doctrine  has  been  kindled  by  the  treatment  of  Kansas, 
and  by  the  shameful  decision  in  the  case  of  Dred  Scott, 
by  which  slaves,  contrary  to  the  general  practice  and 
sentiment  of  the  South,  are  converted  into  mere  property, 
and  classed  in  the  scale  of  God's  creation,  not  as  men, 
but  things.  The  most  repulsive  aspect  of  Slavery  is  the 
one  which  Southern  politicians  have  thus  chosen  to  offer 
to  the  world  and  to  the  Northern  people.  The  harangues 
of  the  Abolitionists  ring  with  these  topics.  Chattel  sla 
very,  the  outrages  of  the  "  border  ruffians"  in  Kansas, 
and  the  Lecompton  Constitution,  form  the  texts  of  their 
inflammatory  appeals  at  this  moment,  when  the  trial  of 
Brown  is  going  on  in  Virginia,  whose  people  are  muster 
ing  in  arms  as  though  they  expected  invasion  every  hour, 
and  are  thus  teaching  both  to  Negroes  and  Abolitionists 
the  secret  of  their  power.  Distant  Kansas  has  stretched 
out  a  long  arm  and  struck  the  South  a  blow,  feeble  in 
deed,  but  sufficient  to  make  it  quiver  and  palpitate  from 
end  to  end. 

The  South  is  a  great  power,  rich  in  territory,  in  re 
sources,  in  wealth,  in  numbers,  in  the  spirit,  energy,  and 
intelligence  of  its  people.  Through  these  it  has  always 
influenced,  and,  for  the  most  part,  controlled  the  Govern 
ment  of  this  country.  It  is  covered  all  over  with  the 
panoply  of  the  Constitution,  of  laws,  and  of  the  vast  in 
terests  of  which  it  is  the  source  and  basis.  The  South 


XX  PKEFACE. 

rules  the  President,  and  Congress,  and  the  Supreme  Court. 
It  has  all  kinds  of  influence,  social,  commercial,  political. 
It  dictates  to  Tammany  Halls  and  to  Empire  Clubs,  whp 
echo  its  opinions  with  eager  unanimity,  and  fulminate  its 
decrees  with  active  zeal.  But,  like  Achilles,  the  South 
has  a  vulnerable  point  which  its  enemies  have  found  out. 
They  have  aimed  at  this  point  a  weak  shaft  by  a  feeble 
hand,  and,  suddenly,  the  whole  ingenious  armament  of 
the  Southern  politicians,  obedient  Presidents,  a  submissive 
Congress,  a  pliant  judiciary,  responsive  Tammany  Halls, 
and  active  rowdy  clubs,  have  become  useless  as  the  guns 
of  a  ship  that  has  sprung  aleak ;  they  cannot  keep  out 
the  sea,  but  may  sink  her  into  it,  and  the  sooner  they  are 
thrown  overboard  the  better. 

The  affair  at  Harper's  Ferry  has,  however,  shed  a  strong 
light  upon  a  more  cheering  aspect  of  our  affairs.  If  it  has 
proved  that  there  exists  in  the  North  opinions  and  passions 
which  may  become  dangerous  to  the  repose  of  Southern 
society,  it  has  also  shown  that  the  great  body  of  the  North 
ern  people  are  true  and  loyal  to  their  country,  and  to  the 
South  as  a  part  of  it.  There  never  was  any  reason  to 
doubt  this,  though  it  has  been  constantly  and  obstinately 
denied  by  Southern  politicians,  who,  to  serve  their  own 
narrow  designs,  have  industriously  represented  the  North 
as  united  in  hatred  of  Slavery,  and  bent  on  its  destruction. 
But  the  truth  is,  the  Abolitionists,  though  they  have  re 
cently  increased  in  numbers  and  influence,  are  coinpara- 


PREFACE.  XXI 

tivelj  insignificant.  The  real  people,  the  conservative 
classes,  who  control  and  manage  the  great  interests  connect 
ed  with  Commerce,  Manufactures,  and  Agriculture,  appre 
ciate  too  well  the  value  of  the  Union,  of  Southern  industry 
and  production,  to  wish  to  see  servile  war,  or  the  withering 
dread  of  it,  desolate  or  weaken  or  impoverish  the  South, 
even  if  the  higher  motives  of  patriotism  and  humanity  did 
not  influence  them.  Their  sentiments  are  proved  by  the 
unanimous  burst  of  regret  and  indignation  which  the 
attempt  made  at  Harper's  Ferry  has  drawn  from  the  whole 
country,  with  but  few  exceptions,  without  distinction  of 
party.  The  lovers  of  order  and  peace,  of  industry  and  its 
rewards,  of  the  security  of  property  and  all  vested  rights, 
are  the  true  friends  of  the  South.  They  are  not  the  ene 
mies  of  the  cotton  crop,  or  of  the  rice  and  sugar  and  tobacco 
which  freight  their  ships,  or  employ  their  mills,  and  build 
up  their  cities ;  neither  are  they,  or  can  they  be,  the  ene 
mies  of  that  system  of  labor  on  which  these  interests  are 
founded,  provided  they  can  honestly  and  conscientiously  be 
its  friends.  They  are  bound  to  the  South  by  a  thousand 
sympathies  and  relations  of  interest  and  feeling,  of  com 
merce  and  marriage  and  friendship,  and  without  these 
ties,  stronger  than  the  Constitution,  the  Union  would  be  a 
rope  of  sand.  These  classes  are  the  true  allies  of  the 
planter.  They  are  stronger  than  demagogues,  or  rowdy 
clubs,  or  the  mobs  of  cities.  But  though  they  are  the 
friends  of  the  South,  they  will  not  be  the  tools  of  its  politi- 


XX11  PREFACE. 

clans,  nor  can  they  behold,  unmoved,  the  North  insulted 
and  oppressed,  the  Constitution  of  their  country  trampled 
in  the  dust,  the  principles  of  liberty  and  justice  outraged, 
or  the  power  of  the  Nation  usurped  and  employed  to  serve 
the  designs  of  mad  and  aggressive  sectional  ambition.  They 
feel  that  the  strength  of  the  Nation  in  numbers,  wealth, 
and  intelligence  is  with  them,  and  they  are  disposed  to 
exert  it,  not  for  the  North,  or  for  the  South,  but  for  the 
country.  Southern  politicians  have  used  the  Democratic 
party  as  an  instrument  to  carry  out  their  insane  scheme  of 
governing  the  great  North  for  exclusive  Southern  purposes. 
They  succeeded  for  a  time,  because  of  Northern  apathy  and 
consciousness  of  strength,  but  they  have  gone  too  far. 
They  have  disgusted  the  Democratic  party,  which  is  leaving 
them  by  thousands, — leaving  tliem,  the  Southern  politi 
cians,  not  the  South,  its  rights,  or  its  true  interests. 

The  excesses  of  Southern  politicians  have  also  stimulated, 
encouraged,  and  inflamed  into  enthusiasm  the  Abolitionists, 
strengthened  their  cause,  added  to  their  numbers,  and  put 
weapons  in  their  hands,  which  they  know  how  to  use  with 
skill  and  effect,  and  are  using.  The  wicked  and  reckless 
passions  of  partisan  and  sectional  strife  kindled  a  blaze  in 
Kansas  not  yet  extinguished.  A  burning  flaijfe  from  that 
fire  was  wafted  so  far  as  Harper's  Ferry.  When  and  where 
the  wild  wind  of  fanatic  fury  may  take  another,  no  one  can 
say.  All  will  agree,  however,  that  the  sooner  the  fire  is 
quite  put  out  the  better.  All  will  agree  that  it  would  be 
insane  folly  to  kindle  another. 


PREFACE.  XX111 

It  thus  appears  that  the  two  enemies  of  the  security  of 
Southern  society,  of  the  interests  founded  on  Southern  in 
dustry,  and  of  the  Union,  which  is  the  protecting  bulwark 
of  both,  are  Southern  politicians  and  Northern  Abolitionists. 
The  whole  power  and  strength  of  the  latter  comes  from  the 
former.  Do  these  politicians  and  the  Northern  Democrats 
still  in  alliance  with  them,  really  represent  Southern  opi 
nion?  Do  the  educated  and  conservative  people  of  the 
South  approve  of  the  repeal  of  the  Missouri  Compromise, 
of  the  conduct  of  the  present  and  the  last  administration  to 
the  people  of  Kansas,  of  the  doctrine  that  Slavery  exists  by 
law  in  the  Territories  independent  of  the  wishes  of  their 
people  or  of  the  power  of  Congress,  of  filibustering  expe 
ditions  to  extend  the  area  of  slavery,  and  of  the  Dred  Scott 
decision,  by  which  a  slave  is  made  mere  property,  and  the 
relation  between  him  and  his  master  pure  ownership, — the 
relation  not  of  a  man  to  a  man,  but  of  a  man  to  a  thing  ? 
Are  these  the  principles  of  the  Southern  people  ?  If  so, 
they  and  we  do  not  "  live  under  the  dome  of  the  same 
idea."  A  deep  gulf  lies  between  their  moral  state  and 
ours,  and  an  "irrepressible  conflict"  already  exists  between 
Southern  weakness  and  Northern  strength,  representative 
of  another  irrepressible  conflict,  never  ending  and  still  be 
ginning,  the  eternal  war  between  truth  and  falsehood,  be 
tween  right  and  wrong.  If  this  be  so,  cotton  yarn,  strong 
as  it  is,  cannot  long  hold  us  together. 

But  if  the  Southern  people  are  content  with  the  security 


XXIV  PREFACE. 

of  Slavery  as  a  "  domestic  institution/ '  guaranteed  by 
Northern  power ;  if  they  are  content  with  the  right  under 
the  Constitution,  to  extend  Slavery  into  any  Territory  to 
which  it  is  suited  by  the  conditions  of  soil  and  climate ; 
if  they  are  content  with  their  four  millions  of  negroes,  with 
out  African  importations  to  barbarize  and  degrade  still  more 
the  industry  of  one-half  the  Nation,  and  increase  the  dan 
ger  of  servile  war  j  if  they  are  content  to  owe  allegiance, 
not  to  the  South,  but  to  the  Union,  to  promote  and  share 
in  Northern  prosperity,  and  to  live  with  the  Northern  peo 
ple,  as  one  nation  under  one  government,  bound  together 
by  duty  and  interest,  and  common  happiness,  hopes,  and 
destiny,  to  a  common  country,  then  there  is  a  Northern 
party  ready  to  meet  them.  There  is  solid  ground  of  prin 
ciple  on  which  both  can  stand,  and  the  two  together  may 
set  Democrats  and  Abolitionists  at  defiance. 

This  is  a  long  preface  to  a  short  book,  but  not  too  long 
for  the  occasion,  if  what  it  contains  be  true.  To  the 
Northern  and  Southern  conservative  party,  yet  to  be  or 
ganized,  but  whose  union,  there  is  reason  to  hope,  is  pre 
paring  in  the  minds  and  hearts  of  the  people,  this  little 
volume  is  addressed.  The  fanatics  of  Slavery,  and  the 
fanatics  of  Anti-slavery,  are  beyond  the  pale  of  argument. 

November  12th,  1859. 


THE  LAW 


TERRITORIES. 


THE   TERRITORIES   AND   THE   CONSTITUTION. 

"Houses  are  built  by  rule  and  Commonwealths/' 

HERBERT. 

THE  wily  and  witty  Talleyrand  was  once  asked 
the  meaning  of  the  word  non-intervention,  so  often 
used  in  European  diplomacy.  "It  is  a  word,"  he 
replied,  "  metaphysical  and  political,  not  accurately 
defined,  but  which  means  much  the  same  thing  as 
intervention."  The  same  word  has  been  frequently 
employed,  of  late  years,  in  our  politics,  with  the 
same  difference  between  its  professed  and  its  practi 
cal  signification.  It  was  introduced  for  the  first 
time  in  reference  to  the  government  of  the  Territo 
ries,  when  it  became  an  object  for  the  South  to  gain 

3 


' 


26  THE    LAW 

Kansas  as  a  slave  State.  Two  obstacles  were  to 
be  overcome.  One  was  the  Missouri  Compromise, 
which  was  a  solemn  compact  between  North  and 
South  to  settle  a  disturbing  and  dangerous  question ; 
the  other  was,  a  possible  majority  in  Congress  that, 
it  was  feared,  might  prohibit  slavery  in  the  new  ter 
ritory.  Southern  politicians  had,  at  the  time,  con 
trol  of  the  Government,  and  they  got  rid  of  both 
difficulties  by  repealing  the  Missouri  Compromise  in 
the  Kansas  and  Nebraska  Bill.  By  necessary  im 
plication  arising  from  the  relation  of  the  Territories 
to  the  rest  of  the  nation,  by  the  language  of  the 
Constitution,  and  by  the  uniform  construction  of  it 
and  practice  under  it  from  the  earliest  period  of  our 
history,  the  Territories  had  been  subjected  to  the  ab 
solute  control  of  the  General  Government.  By  the 
Kansas  and  Nebraska  Bill  they  were  withdrawn 
from  that  control.  The  principle  of  popular  sove 
reignty,  it  was  said,  applied  to  them  as  well  as  to 
the  States,  and  this  bill  declared  that  the  people  of 
the  Territories  should  be  perfectly  free  to  choose 
their  own  domestic  institutions  and  regulate  their  own 
affairs  in  their  own  way.  Non-intervention  by  Con 
gress  was  loudly  proclaimed  by  all  party-men  and 
party-organs  as  the  constitutional  right  of  the  Terri 
tories.  Kansas,  it  was  thought,  would  be  speedily 


OF   THE   TERRITORIES.  27 

settled  by  Southern  men,  who  would,  of  course, 
choose  slavery  as  one  of  their  domestic  institutions, 
which  would  thenceforth  be  safe  from  Northern 
majorities  in  Congress. 

The  result,  however,  was  different.  Nature  in 
tended  Kansas  not  for  slavery  but  for  free  labor. 
Its  temperate  climate  and  fertile  soil  fit  it  for  Saxon 
enterprise  and  industry,  for  the  home  of  the  domi 
nant  race,  which  is  carrying  liberty,  the  arts,  the 
literature  and  science  of  civilization  wherever,  on 
this  continent,  that  race  can  live  and  work.  Kansas 
is  not  fitted  for  the  Negro.  As  soon  as  its  rich 
lands  were  opened  to  emigration,  they  attracted 
crowds  of  bold  and  hardy  men  from  the  North,  who 
went  there  to  build  up  homes  and  fortunes  for  them 
selves  and  their  children ;  who  brought  with  them 
love  of  freedom,  aversion  to  slavery,  and  the  fixed 
determination  that  this  fine  Territory  should,  in  fact, 
belong  to  them  and  their  children,  and  be  cultivated 
by  them  and  for  them,  and  not  by  and  for  the  Negro. 
Then  commenced  a  struggle  which  forms  a  very  de 
plorable  and  mortifying  portion  of  our  history — a 
struggle  between  the  North  and  South  to  get  pos 
session  of  this  Territory,  not  so  much  for  the  sake  of 
its  wealth  as  its  votes.  It  was  a  political  contest, 
and  its  object  was  power;  party  power,  sectional 


28  THE    LAW 

power.  As  soon  as  it  became  apparent  that  the 
majority  of  the  settlers  were  opposed  to  slavery, 
preparations  were  made  to  defeat  them  at  the  elec 
tions.  Armed  bands  from  Missouri  invaded  the 
hustings  and  deposited  their  own  votes.  Blood  was 
shed.  Sentinel  guards  were  stationed  on  the  routes 
leading  to  the  disputed  Territory,  to  keep  away  all 
emigrants  from  the  North,  and  every  species  of  fraud 
and  violence  resorted  to,  to  secure  a  legislature  fa 
vorable  to  the  wishes  of  the  South.  These  measures 
were  successful.  A  legislature  was  elected  by  Mis- 

Curi  votes,  and  it  immediately  passed  such  laws  to 
tablish  slavery,  as  shocked  even  its  advocates ; 
laws  abolishing  the  civil  rights  of  American  citizens 
for  the  sake  of  holding  the  Negro  in  bondage ;  laws 
contradicting  every  principle  of  American  or  Eng 
lish  liberty  for  the  sake  of  sectional  and  party  vic 
tory.  A  melancholy  fact,  full  of  gloomy  meaning ; 
for  what  security  do  our  institutions  and  our  doc 
trines  inherited  from  the  past  afford,  when  such 
things  can  be  done,  and  receive  the  sanction  and 
support  of  public  men  and  powerful  parties  ? 

This  victory  achieved,  Southern  politicians  and 
Northern  Democrats  soon  showed  the  meaning  they 
attached  to  the  principle  of  non-intervention  and 
popular  sovereignty  announced  in  the  Kansas  and 


OF    THE   TERRITORIES.  29 

Nebraska  Bill,  and  ostentatiously  paraded  in  mes 
sages,  Congressional  speeches,  stump  oratory,  and 
the  partisan  press.  The  Legislature  of  Kansas, 
though  proved  to  have  been  elected  by  fraud  and 
violence,  and  by  Missouri  votes,  was  recognized  as 
legal  and  valid  by  Congress  and  the  President ;  its 
infamous  laws  were  adopted  and  enforced  by  military 
power ;  the  whole  weight  of  Executive  influence,  in 
and  out  of  the  Territory,  was  exerted  to  defeat  the 
known  wishes  of  its  people,  and  these  efforts  were 
continued  until,  at  length,  they  culminated  in  the 
attempt  to  force  upon  Kansas  the  hated  Lecompton 
Constitution,  which  introduced  slavery  against  the 
wishes  and  earnest  protest  of  nine-tenths  of  its  imR- 
bitants.  Such  was  the  practical  application  of  the 
new  doctrines  of  the  Kansas  and  Nebraska  Bill, 
made  by  its  authors  and  advocates. 

But  this  scheme  did  not  succeed  in  the  end.  It 
was  a  struggle  against  physical  laws  which  destine 
all  such  regions  as  Kansas  for  free  labor,  and  emi 
grants  from  the  North  poured  into  the  Territory  in 
spite  of  border  ruffians,  partisan  intrigue,  and  Pre 
sidential  power.  It  was  a  struggle  also  against  the 
force  of  an  idea,  so  rooted  in  the  American  mind  as 
to  be  a  feeling  or  instinct  rather  than  a  political 
doctrine, — the  idea  that  all  government  is  unjust  and 
3* 


30  THE    LAW 

oppressive  which  violates  the  opinions  and  sentiments 
of  the  governed. 

Two  great  facts  were  plainly  visible  through  the 
flimsy  web  of  attorney  logic  and  quibbling  techni 
cality,  not  very  ingeniously  woven  to  conceal  them. 
One  of  these  facts  was  that  the  people  of  Kansas 
were  heartily  and  almost  unanimously  averse  to 
slavery;  the  other  was  that  the  Government  was 
trying  by  every  means  in  its  power  to  impose  slavery 
upon  them.  This  violation  by  Democrats  of  the  fun 
damental  principle  of  Democracy,  aroused  the  nation. 
It  was  too  gross  even  for  the  South,  and  was  opposed 

»jome  of  its  most  eminent  statesmen.  It  excited 
eral  indignation  in  the  North  and  thinned  the 
ranks  of  the  Democracy.  The  popular  sentiment 
made  itself  felt  in  a  way  that  could  not  be  misunder 
stood  or  disregarded,  and  the  Lecompton  Constitu 
tion  was  virtually  rejected  by  Congress,  by  the  votes 
of  Southern  men  and  of  Democrats,  in  spite  of 
threats,  denunciation,  Executive  patronage,  and  all 
other  arts  by  which  power  seeks  to  maintain  its 
abuses,  and  parties  secure  the  fidelity  of  adherents. 

It  was  clear,  therefore,  that  the  principle  of  popu 
lar  sovereignty  in  the  Territories,  introduced  by  the 
Kansas  and  Nebraska  Bill,  a  principle  before  un 
known  to  the  law  and  practice  of  our  Government, 


OF   THE   TERRITORIES.  31 

would  not  suit  the  South.  It  appeared  too  proba 
ble  that  not  only  the  people  to  inhabit  all  the  terri 
tory  north  of  36*30,  the  old  Missouri  Compromise 
line,  but  also  much  territory  south  of  it,  would,  like 
the  people  of  Kansas,  reject  slavery  if  left  to  regu 
late  their  domestic  institutions  in  their  own  way. 
What  then  were  Southern  politicians  to  do  ?  In 
voke  the  ancient  and  long-exercised,  but  now  denied 
and  derided  power  of  Congress  over  the  Territories  ? 
This  might  prove  a  dangerous  weapon  in  the  hands 
of  possible  future  Northern  majorities,  when  the 
question  arose  as  to  Southern  territory  possessed 
and  to  be  acquired.  It  was  obviously  necessary  to 
withdraw  slavery  alike  from  the  control  of  Congress 
and  of  the  people  of  a  Territory.  Some  ingenuity 
was  required  for  this.  The  Kansas  and  Nebraska 
Bill  declares  that  the  Constitution  extends  to  the 
Territories.  This  was  not  an  entirely  new  doctrine. 
It  had  been  broached  before  by  Mr.  Calhoun,  and 
insidious  attempts  had  been  made  to  introduce  it,  but 
were  always  defeated  on  the  ground  that  the  Con 
stitution,  by  its  language  and  the  practice  under  it, 
was  made  for  States  only,  and  that  the  Territories 
were  subject  to  the  supreme  control  of  Congress, — a 
control  that  had  frequently  been  exercised,  not  only 
independently  of  the  Constitution,  but  in  a  manner 


6V  THE    LAW 

incompatible  with  it.  Nevertheless,  this  doctrine 
was  introduced,  with  other  innovations,  into  the 
Kansas  and  Nebraska  Bill.  After  the  passage  of 
that  bill,  the  views  of  the  South  were  enlarged ;  its 
novel  principles  of  constitutional  law  sanctioned, 
and  its  plans  of  future  action  confirmed  by  the  deci 
sion  of  the  Supreme  Court  in  the  case  of  Dred  Scott. 
According  to  that  decision,  the  Constitution  recog 
nizes  slavery  as  a  national  institution.  It  recog 
nizes  slaves  as  property ;  nay,  as  mere  property, 
differing  in  no  respect  from  other  merchandise. 
The  Territories  belong  to  the  nation.  Every  citizen 
has  equal  rights  to  them  and  in  them.  Why,  there 
fore,  may  not  a  Southern  man,  as  well  as  a  Northern 
man,  go  into  them  with  his  property  ?  What  right 
has  Congress  to  discriminate  between  North  and 
South,  and  place  one  under  an  ignominious  ban  of 
restriction  ?  What  right  have  the  people  of  a  Terri 
tory  to  exclude  their  fellow-citizens  from  advantages 
enjoyed  by  themselves,  or  to  undertake  to  decide  for 
others  what  is  and  what  is  not  property  ?  The  Con 
stitution  declares  that  slaves  are  property ;  that  all 
the  States  and  the  people  have  equal  rights.  The 
Territories  belong  to  all.  Therefore,  under  the  Con 
stitution  they  should  be  enjoyed  by  all. 

By  this  ingenious  logic,  the  Kansas  and  Nebraska 


OF   THE   TERRITORIES.  66 

Bill  is  made  to  contradict  itself.  It  first  declares 
that  the  Constitution  extends  to  the  Territories ;  in 
other  words,  according  to  the  doctrines  of  the 
framers  of  the  bill,  slavery  exists  in  them  by  force 
of  the  Constitution,  without  reference  to  the  will  of 
the  people.  It  then  says  that  the  people  of  the  Ter 
ritories  shall  be  "  perfectly  free  to  form  and  regu 
late  their  domestic  institutions  in  their  own  way." 
In  this  manner,  though  by  a  flat  contradiction  of  all 
the  principles  they  had  loudly  proclaimed  before, 
Southern  politicians  got  rid  of  the  power  of  the 
people  of  a  Territory,  as  well  as  of  Congress,  over 
slavery.  Slavery,  they  say,  exists  and  has  always 
existed  in  all  the  Territories  independently  of  their 
people,  or  of  Congress.  Neither  Congress  nor  the 
people  put  it  in,  nor  can  they  take  it  out.  All 
legislation  by  Congress,  therefore,  on  this  subject, 
from  the  Act  of  1789,  prohibiting  slavery  in  the 
Northwest  Territory,  down  to  the  Missouri  Com 
promise  in  1820,  was  unconstitutional  and  is  void. 
Accordingly,  the  Missouri  Compromise  was  repealed, 
slavery  now  exists  in  all  the  Territories  by  virtue  of 
the  Constitution,  and  will  remain  in  them,  under  its 
protection,  safe  from  Abolitionists,  safe  from  Con 
gress,  safe  even  from  the  people  of  the  Territories, 


34  THE    LAW 

notwithstanding  the   promises   of  the   Kansas  and 
Nebraska  Bill. 

But  snares  and  perils  beset  the  path  of  those  who 
depart  from  truth,  or  from  well-settled  principles  of 
law.  Error,  when  logically  carried  out  to  its  conse 
quences,  leads  always  to  difficulty  and  embarrass 
ment.  It  was  soon  discovered  that  this  new  scheme 
of  Southern  doctrine  and  policy  would  not  work. 
Slavery  is  protected  in  the  Territories  by  the  Con 
stitution,  but  what  is  the  Constitution?  It  is  the 
written  plan  of  the  Government,  by  which  power  is 
distributed  among  its  departments  and  duties  as 
signed  to  each.  It  is  a  declaration  by  the  people  of 
the  general  principles  on  which  the  Government  is 
founded,  and  of  the  means  by  which  those  principles 
are  to  be  protected  and  applied.  But  the  Constitu 
tion  does  not  execute  itself.  It  contemplates  and 
requires  action  by  the  powers  it  has  ordained,  to  call 
into  life  and  apply  its  principles.  This  is  done  by 
means  of  laws.  The  Constitution  provides  for  the 
election  of  a  President,  but  no  President  can  be 
elected  unless  Congress  passes  laws  for  the  purpose. 
It  provides  for  the  imposition  of  taxes,  but  without 
revenue  laws  no  taxes  can  be  collected.  It  provides 
for  the  capture  of  fugitive  slaves,  but  without  laws 
to  carry  this  provision  into  effect  it  would  be  inope- 


OF   THE   TERRITORIES.  35 

t 

rative,  and  so  in  all  other  cases,  the  principles  of 
the  Constitution  are  latent  powers  which  can  have 
effect  only  by  means  of  laws  passed  by  Congress. 
Of  what  practical  use,  then,  is  this  new  doctrine 
that  the  Constitution  extends  to  Territories  and  car 
ries  slavery  along  with  it,  unless  either  the  Territo 
rial  Legislature  or  Congress  make  laws  to  carry  into 
effect  this  principle ;  laws  to  enable  the  master  to 
hold  his  slaves  in  bondage,  and  to  compel  their  ser 
vices.  Such  laws  are  necessary  in  the  States.  They 
are  equally  necessary  in  the  Territories.  No  such 
laws  are  in  the  Constitution. 

Here,  then,  was  a  new  difficulty.  With  infinite 
effort  of  logical  subtlety  and  partisan  management, 
slavery  had  been  withdrawn  both  from  the  power  of 
Congress  and  of  the  people  of  the  Territories,  and 
committed  to  the  care  of  the  Constitution,  when  be 
hold,  the  Constitution  proves  to  be  no  protection  at 
all.  It  is  absolutely  powerless  and  a  dead  letter, 
unless  life  be  given  to  it  either  by  Congress  or  the 
Territorial  Legislature.  But  both  may  refuse  to  act. 
They  may  carry  out  the  principle  of  non-interven 
tion,  so  imperiously  demanded  by  the  South,  and  do 
nothing,  leaving  slavery  to  the  Constitution  alone. 
Slavery,  then,  is  in  the  Territory  theoretically ;  yet, 
practically,  there  can  be  no  slaves,  for  there  are  no 


36  THE    LAW 

laws  by  which  a  master  can  control  a  slave.  The 
moment  one  is  brought  into  a  Territory  he  is  free. 

In  this  dilemma  Southern  politicians  have  boldly 
invented  and  proclaimed  another  new  doctrine  of 
constitutional  law.  Congress  is  bound,  they  tell  us, 
to  make  laws  for  the  protection  of  slavery  in  the 
Territories.  Slavery  is  in  the  Territories  by  the 
Constitution,  and  it  is  the  duty  of  Congress  to 
execute  the  Constitution.  Slaves  are  property, 
made  so  by  the  Constitution,  and  the  first  obliga 
tion  of  Government  is  to  protect  the  property  of  its 
citizens.  The  South  is  thus  obliged  to  eat  its  own 
words,  and  flatly  to  contradict  every  one  of  those 
principles,  to  maintain  which  it  has  embroiled  the 
country  for  so  many  years,  and  sown  so  widely  the 
seeds  of  sectional  strife.  Its  politicians  are  forced 
to  invoke  the  authority  of  Congress  over  slavery, 
though  they  denied  and  attempted  to  abolish  that 
authority  by  the  Kansas  and  Nebraska  Bill ;  they 
are  obliged  to  deny  the  power  of  the  people  of  a 
Territory,  though  they  asserted  that  power  in  the 
same  bill.  The  people,  they  now  say,  have  no 
power  over  their  domestic  institutions,  but  Congress 
is  supreme,  and  may  impose  slavery  on  a  Territory 
in  defiance  of  its  wishes  or  its  votes. 

It  is  not  easy  to  see,  however,  in  what  way  this 


OF   THE   TERRITORIES.  37 

new  doctrine  is  to  help  the  South,  unless  it  can  be 
sure  always  of  a  majority  in  Congress.  New  prin 
ciples  of  law,  especially  when  they  overturn  old 
usage  and  well-settled  opinions,  do  not  meet  with 
ready  assent.  The  power  of  Congress  over  the  Ter 
ritories  is  no  doubt  supreme,  and  has  heretofore  been 
exerted  on  many  occasions,  both  to  prohibit  and  to 
permit  slavery.  It  is  the  right  of  Congress  to  do 
either,  so  at  least  we  are  taught  by  precedent  and 
the  authority  of  wise  men  in  times  past.  No  new 
dogma,  invented  to  serve  a  purpose,  can  impose  a 
new  obligation  on  Congress  or  obtain  universal  con 
sent.  Should  it  turn  out  that  any  future  Congress 
shall  refuse  to  act  in  the  matter  at  all,  according  to 
one  Southern  doctrine,  or  leave  slavery  to  the  Ter 
ritorial  Legislature  according  to  another,  what  re 
medy  has  the  South  ?  What  authority  can  it  invoke 
to  coerce  Congress  ?  To  what  tribunal  can  it  apply 
for  a  writ  of  mandamus  to  compel  Congress  to  per 
form  its  alleged  duty  ?  To  impose  a  duty  without  a 
penalty  and  without  power  to  enforce  performance, 
is  a  nullity.  Such,  however,  is  the  new  doctrine 
unblushingly  announced  by  Southern  politicians  and 
their  Northern  adherents,  though  it  contradicts 
every  line  of  the  Kansas  and  Nebraska  Bill,  and  is 
a  flat  denial  of  all  the  opinions  for  which  they  have 

4 


38  THE    LAW 

contended  during  the  last  three  years  of  political 
agitation  and  sectional  hostility,  created  by  those 
opinions. 

Consistency  is  a  virtue  both  in  men  and  parties 
and  governments.  Without  it  they  can  inspire  nei 
ther  confidence  nor  respect.  Conduct  must  be 
guided,  either  by  principles,  or  by  selfishness  with 
out  regard  to  principles.  To  assert  one  opinion 
to-day  to  serve  a  purpose,  and,  when  that  fails,  to 
advocate  an  opposite  opinion  to-morrow,  is  .to  add 
falsehood  to  selfishness.  It  would  be  more  honest 
to  confess  the  selfishness  as  the  sole  rule  of  action. 
When  principles  are  supported  and  abandoned  by  a 
political  party  to  suit  emergencies,  when  they  are 
not  regarded  as  guides,  applicable  in  all  times  and  to 
all  cases,  but  as  mere  weapons  of  party  warfare, 
employed  not  because  they  are  just  and  true,  but 
because  they  can  attract  adherents,  cement  alliances, 
and  conciliate  interests,  then  party  questions  are 
withdrawn  from  the  pale  of  argument,  and  must  be 
decided  by  mere  force  of  votes.  In  such  a  contest, 
selfish  passions  reign  unchecked,  reason  is  silenced, 
violence  and  corruption  contend  together,  until  at 
length  moral  anarchy,  the  frightful  rule  of  no  rule, 
arises,  which  leads  directly  to  civil  and  social  anar 
chy.  Southern  politicians,  aided  by  Northern  Demo- 


OF   THE    TERRITORIES.  39 

crats,  repealed  the  Constitution  and  overturned  the 
practice  of  the  Government  settled  by  the  experi 
ence  of  sixty  years  and  sanctioned  by  the  conduct 
and  opinion  of  the  wisest  and  best  men  of  our  coun 
try.  They  introduced  a  new  doctrine  and  a  new 
law,  and  now,  when  that  doctrine  and  law  are  found 
unfit  instruments  for  their  purpose,  they  abandon 
both  and  proclaim  another  principle  inconsistent 
alike  with  those  they  have  thrown  aside,  and  with 
the  Constitution  they  have  violated.  Is  it  not  fair 
to  conclude  that  Constitution  and  laws  and  principles 
are  to  them  mere  tools  with  which  they  hope  to  ac 
complish  their  objects.  That  they  have  one  purpose 
only  and  guide  in  all  their  action, — to  gain  power 
for  slavery  and  the  South.  That  all  principles  are 
to  them  alike,  provided  they  serve  this  purpose ;  that 
none  are  false  and  none  true,  none  just  or  unjust, 
but  all  are  these  by  turns  and  all  are  welcome,  if 
they  serve  the  present  need.  Such  a  party  can 
never  be  overcome  by  argument,  for  its  object  is  not 
truth,  but  success.  It  abandons  all  the  principles 
for  which  it  contended,  without  hesitation,  the  mo 
ment  they  become  useless,  thus  acknowledging  their 
falsehood,  and  adopts  another  set,  equally  false,  for 
which  it  contends  as  zealously  as  it  did  for  the  first. 
It  is  equally  insincere  in  both.  It  is  sincere  only  in 


40  THE   LAW 

one  thing, — the  attainment  of  its  ends.  Such  a  party 
is  very  dangerous,  for  should  its  ends  be  unreason 
able  or  unattainable,  neither  the  law  nor  policy  of 
the  country  can  ever  be  settled  on  a  firm  and  dura 
ble  basis.  When  no  principle  is  considered  too  well 
established  to  be  questioned,  and  no  compact  so 
solemn  that  it  may  not  be  broken,  and  when  the 
object  of  discussion  is  agitation,  and,  by  means  of 
agitation,  victory,  how  is  it  possible  that  a  subject 
so  difficult  and  exciting  as  slavery  can  be  withdrawn 
from  the  contests  of  party  and  placed  on  secure 
foundations.  Nothing  is  secure  but  what  is  true, 
and  truth,  not  always  to  be  got  by  seeking,  is  sure 
to  be  missed  when  not  the  object  of  search. 

But  these  abuses  fortunately,  in  most  cases,  work 
their  own  cure.  Power  under  a  free  government, 
leaves  a  party  that  habitually  disregards  the  obliga 
tions  of  truth  and  justice.  The  mere  selfish  pursuit 
of  interest  by  one  side,  induces  the  same  course  by 
the  other  in  self-defence,  and  this  is  not  government 
but  war,  the  last  resort  when  argument  and  reason 
fail.  The  law  is  the  protection  of  all,  and  a  party 
that  violates  the  law,  to  accomplish  ambitious  de 
signs,  attacks  the  security  of  all.  The  Southern 
party  has  gone  much  too  far.  Elated  by  success 
and  power,  it  has  become  aggressive.  It  has  re- 


OF   THE   TERRITORIES.  41 

moved  ancient  landmarks,  it  has  introduced  new 
and  false  doctrines  into  our  law,  it  lias  at  length 
abandoned  all  principle  whatever,  and  stands  forth 
the  avowed  champion  of  Southern  interests  only, 
declaring  that  it  will  either  rule  the  Union  or  break 
the  Union.  It  is  difficult  to  believe  that  this  party 
really  represents  the  enlightened  opinion  of  the 
South,  or  will  be  sustained  by  it.  Unless  public 
sentiment  be  hopelessly  corrupted,  moderate  men 
abandon  extreme  ideas  when  strife  reaches  a  certain 
point  of  exasperation,  invoke  the  influence  of  pa 
triotic  feeling  and  try  to  find  some  principles,  just 
for  all  and  in  which  all  can  agree,  to  restore  har 
mony  and  united  action  for  the  common  good.  In 
dications  are  not  wanting  to  show  that  many  in  the 
South  are  revolted  by  the  monstrous  doctrines  and 
exorbitant  demands  of  Southern  politicians.  They 
see  in  them  neither  truth,  nor  justice,  nor  safety. 
Neither  do  they  see  these  in  the  opinions  and 
schemes  of  Northern  Abolitionists.  Between  the 
two  extremes  they  would  gladly  find  a  path  of 
safety,  and  so  also  would  the  great  body  of  the 
Northern  people.  The  South  has  lived  and  grown 
in  wealth  and  strength  under  the  Constitution  and 
the  laws  made  by  its  founders.  They  were  made 
for  its  protection,  and  they  have  protected  it.  They 
4* 


42  THE    LAW 

were  made  for  the  happiness  and  security  of  the 
whole  country,  and  they  have  promoted  these  in 
ample  measure.  It  would  be  strange  indeed,  if  the 
time  has  now  arrived  when  the  safety  of  the  South 
demands  that  this  Constitution  be  repealed,  that 
these  laws  be  declared  null  and  void,  as  founded  in 
error  or  injustice,  or  behind  the  age  in  which  we 
live.  Southern  politicians  have  hastily  and  rashly 
decided  this  question.  Perhaps  they  made  a  mis 
take.  If  it  can  be  shown  that  the  Constitution  is 
still  sufficient  for  the  protection  of  Southern  inte 
rests,  that  the  laws  passed  by  the  men  who  watched 
over  the  infancy  of  the  Government  were  just  to 
the  South,  and  are  so  still,  the  decision  of  these 
politicians  may  possibly  be  reversed  by  the  South 
ern  people. 

Slavery  is  a  very  different  thing  now  from  what 
it  was  sixty  years  ago.  It  has  grown  with  the 
growth  of  the  country  into  proportions  far  greater 
than  were  dreamed  of  in  the  philosophy  of  the 
founders  of  the  Government.  They  looked  forward 
to  the  time  when  it  could  with  safety  and  advantage 
be  abolished.  They  did  not  foresee  that  the  number 
of  slaves  would  increase  to  four  millions,  and  the 
products  of  their  labor  become  the  basis  of  the  com- 


OF   THE   TERRITORIES.  43 

merce  and  manufactures  of  the  world.  Slavery  no 
longer  means  the  ignorant,  indolent,  expensive  lahor 
of  a  barbarous  race,  brought  by  rapine  from  their 
native  land,  unjustly  held  in  bondage  here,  a  moral, 
social,  and  economical  evil,  to  be  got  rid  of  as  soon 
as  possible  by  emancipation  or  colonization  or  amal 
gamation,  and  the  labor  of  the  free  white  race  sub 
stituted  in  its  stead.  The  times  have  changed  since 
there  were  seven  hundred  thousand  slaves  in  the 
South,  worth  from  one  hundred  to  two  hundred  dol 
lars  each,  and  since  the  creation  of  the  cotton  crop. 
Slavery  now  means  the  industry  of  one-half  the  na 
tion.  It  means  Northern  commerce  and  manufactures, 
Northern  cities,  Northern  wealth  and  progress.  It 
means  rice,  sugar,  tobacco,  cotton ;  commodities  that 
enter  every  household  in  the  civilized  world,  and 
constitute,  in  a  greater  or  less  degree,  the  necessa 
ries,  comforts,  and  luxuries  of  all  nations.  Slavery 
means  also  security  to  Southern  society,  safety  to 
their  homes,  peace,  and  order.  It  means,  too,  count 
less  wealth,  present  and  prospective,  in  the  slaves 
themselves,  regarded  as  property,  and  in  the  pro 
duce  of  their  labor,  now  so  great,  and  which  com 
merce  requires  in  larger  quantities  every  year  to 
supply  a  demand  which  increases  with  the  progress 
of  the  world  in  civilization  and  the  arts.  Slavery 


44  THE    LAW 

has,  therefore,  a  meaning  which  it  had  not  in  1789 
or  in  1820.  It  has  become  indissolubly  connected 
with  great  interests ;  it  carries  with  it  the  fortunes 
of  a  mighty  future.  It  has  moral,  social,  political 
influences,  of  terrible  significance.  The  Negro  has 
laid  a  grasp  of  iron  on  the  country  which  cannot  be 
shaken  off.  Four  millions  of  men,  constituting  and 
producing  hundreds  of  millions  of  wealth,  and  influ 
encing  all  other  wealth,  is  a  commanding  fact  in  the 
economy  of  the  nation.  Four  millions  of  an  alien 
race,  with  spiritual  life  in  them,  with  passions  and 
affections  ;  a  race  forever  rooted  in  our  soil,  and 
growing  as  fast  as  we  grow,  to  be  kept  in  subjection, 
and  governed  for  their  good  and  ours,  is  another 
commanding  fact,  imposing  on  us  duties  and  respon 
sibilities,  not  without  risk.  The  Act  of  1789  was  a 
Southern  measure,  so  was  the  Missouri  Compromise. 
Both  were  approved  by  Southern  men,  and  could  not 
have  been  passed  without  their  consent.  Both  were 
acts  of  Congress,  and  are  repealable  by  Congress.  A 
change  of  circumstances  necessarily  leads  to  a  change 
of  counsels.  Since  those  acts  were  passed,  slavery 
has  altered.  Is  it  surprising  that  the  opinions  and 
purposes  of  -Southern  men  should  alter  with  it  ? 
Slavery  has  now  an  importance,  compared  with 
which,  in  1789,  or  even  in  1820,  it  was  insignifi- 


OF   THE   TERRITORIES.  45 

cant.  It  has  also  a  future  then  unsuspected,  but 
now  clearly  revealed,  opening  vast  vistas  of  power 
and  wealth,  of  difficulty  and  danger.  Is  it  not  the 
part  of  wisdom  for  those  who  are  the  masters  of  that 
wealth,  for  wiiom  and  whose  children  slavery  is  a 
fate,  to  which  they*  are  bound,  for  good  or  for  evil, 
by  chains  stronger  than  the  fetters  of  the  slave  him 
self;  is  it  not  their  duty  to  protect  that  great  pre 
sent,  to  provide  for  that  greater  future  ? 

Let  us  treat  this  subject  with  large  and  liberal 
views,  with  impartial  and  candid  judgment.  It  is 
too  big  a  thing  for  petty  quibbling  or  technical  argu 
ment,  or  narrow  sectional  or  partisan  intrigues  and 
management.  The  prosperity  and  safety  of  the 
South  concern  the  Nation.  They  involve  the  Union, 
and  with  it  the  happiness  now  and  forever  of  the 
whole  people.  The  question  is,  Does  the  Constitu 
tion,  as  heretofore  understood  and  construed,  afford 
protection  and  all  reasonable  scope  and  advantage 
to  the  South  in  the  altered  condition  of  slavery 
now  ?  It  was  intended  to  give  such  protection. 
Has  it  failed  ?  The  question  is  worth  considering. 

All  governments  are  modified  by  time  and  chang 
ing  circumstances,  and  happy  is  that  country  where 
political  innovations  are  like  those  of  time  or  the 


46  THE    LAW 

changes  of  the  seasons,  gradual  and  easy,  not  sud 
den  and  violent  like  the  convulsions  of  Nature, — the 
earthquake  or  the  tornado.  Government  must  re 
present  the  opinions  of  the  day  and  meet  its  wants. 
But  the  present  of  a  Nation  contains  a  portion  of 
the  past  and  of  the  future.  It  combines  among  its 
people  old  age,  manhood,  and  childhood.  Its  loosen 
ing  hold  never  entirely  quits  the  previous  age  and 
never  completely  grasps  the  coming,  and  to-day  is 
a  moving  point  that  scarcely  divides  the  two.  Go 
vernment,  therefore,  to  be  really  representative  of  a 
progressive  people,  should  yield  slowly  to  new  ideas, 
but  it  should  yield ;  holding  to  what  is  good  in  the 
past,  accepting  with  caution  the  offerings  and  pro 
mises  of  the  future. 

It  is  this  reverence  for  age,  for  custom  and  pre 
scription,  this  tough  pliability,  this  thoughtful  de 
liberation  over  novelties,  and  somewhat  stubborn 
resistance  to  change,  that  constitutes  much  of  the 
excellence  of  that  noble  growth  of  time,  the  English 
Constitution.  It  has  changed,  but  has  been  con 
servative  in  its  changes,  and  resembles  those  ancient 
rural  castles  that  still  remain  in  the  island,  where 
are  to  be  seen,  blended  in  one  harmonious  whole,  the 
towers  and  donjon-keep  of  feudality,  the  baron's  hall 
of  Queen  Bess,  and  the  modern  drawing-room,  filled 


OF   THE   TERRITORIES.  47 

with  the  latest  inventions  of  Parisian  upholstery ; 
armor  worn  by  the  Crusaders,  portraits  by  Van  Dyke 
and  Reynolds,  and  landscapes  by  Turner ;  a  park, 
shaded  by  oaks,  the  growth  of  centuries,  surrounding 
French  flower-gardens,  the  creation  of  the  last  year. 
There  is  great  difference  between  the  politics  of  Eng 
land  and  the  action  of  its  Government  under  Eliza 
beth  and  under  Victoria,  yet  King,  Lords,  and  Com 
mons  still  remain ;  and  the  Englishman  to-day  appeals 
to  Magna  Charta,  the  Petition  of  Right,  and  the  Bill 
of  Rights,  just  as  he  did  in  1215,  in  1645,  and  1688. 
These  great  organic  acts  of  Government,  together 
with  usage  and  precedent,  form  the  unwritten  Con 
stitution  of  England.  They  were  merely  declara 
tory  of  principles  already  established  in  the  opinions 
of  the  people,  and  revered  by  them  as  safeguards 
of  rights  they  had  inherited.  The  principles  remain, 
the  rights  remain,  much  of  the  outside  form  remains, 
and  what  of  the  last  has  changed  has  slowly 
changed,  as  portions  became  unfit  to  meet  new 
wants  and  new  ideas.  In  like  manner  our  Constitu 
tion  was  a  formal  declaration  of  the  principles  held 
as  true  and  just  by  those  who  made  it,  and  which 
they  also  inherited.  The  Constitution  created  no 
thing  except  forms  and  an  apparatus  of  Govern 
ment,  to  give  life,  and  force,  and  security,  to  those 


48  THE   LAW 

principles.  It  could  create  nothing  else.  A  Con 
stitution  that  invested  with  power  any  principles 
other  than  those  which  lived  in  the  minds  and 
hearts  of  the  people,  would  be  a  nullity, — could  not, 
indeed,  have  been  made.  Those  principles  are  still 
alive.  Nothing  has  been  added  to  them,  nothing 
taken  away,  nothing  has  weakened  them  since  the 
Constitution  was  formed.  If  its  shield  was  broad 
enough  to  cover  them  then,  it  is  broad  enough  now. 
The  spirit  of  our  Constitution  was  republican.  A 
republic  suited  the  existing  condition  of  our  people, 
and  therefore  they  demanded  one.  Anything  but 
the  principles  of  a  republic  embodied  in  the  Consti 
tution  would  not  have  satisfied  their  wishes,  or  been 
in  harmony  with  their  opinions,  and  could  have  been 
imposed  on  them  only  by  physical  force.  This  Go 
vernment,  therefore,  is  a  republic,  formed  by  a  union 
of  republican  States.  It  so  happened  that  in  some 
of  those  States,  slavery  existed  when  they  met  to 
gether  to  create  a  union.  Slavery  was  a  part  of 
their  domestic  and  civil  policy,  deemed  by  them 
essential  to  their  prosperity  and  safety.  It  was 
clear,  therefore,  that  the  new  Constitution  must  con 
tain  slavery  and  republicanism  too,  must  give  life 
and  protection  to  both,  otherwise  these  States  could 
never  accept  it.  Therefore,  although  some  of  the 


OF   THE   TERRITORIES.  49 

States  were  no  friends  or  approvers  of  slavery,  this 
protection  was  granted,  not  as  a  favor,  but  a  right ; 
not  grudgingly,  but  fully  and  completely.  It  was 
not  yielded,  but  admitted  as  the  just  claim  of  equals 
and  brothers,  engaged  together  in  the  noble  work  of 
building  up  an  empire  of  political  liberty  for  the 
great  Saxon  race,  whose  destiny  it  was  to  inherit, 
and  subdue,  and  cultivate,  and  adorn,  a  vast  conti 
nent  ;  whose  energy  and  intellect  were  to  fill  its 
wide  borders  with  the  arts  and  knowledge  of  civili 
zation,  and  who  should  be  bound  together  by  the 
same  laws  and  institutions,  and  by  the  stronger  ties 
of  common  principles,  interests,  hopes,  and  loyal 
love  of  country,  so  that  the  jealousies  and  animosi 
ties  which  made  Europe  a  battle-field,  might  never 
have  place  among  them. 

Now  one  principle  of  republican  Government  is 
equality  before  the  law.  Not  equality  of  condition 
or  property, — a  power  stronger  than  republican 
ism  prohibits  that, — but  equality  of  rights.  The 
circumstances  attending  the  formation  of  the  Union, 
gave  peculiar  prominence  to  this  principle,  for  it  was 
of  necessity  to  be  applied  not  to  citizens  only,  but  to 
States.  Accordingly  we  find  the  equality  of  both 
amply  provided  for  by  the  Constitution.  In  the  eye 
of  this  great  organic  law,  the  States  are  equal,  and 

5 


50  THE    LAW 

the  citizens  are  equal ;  nay,  the  people  of  each  State 
have  the  privileges  of  citizens  in  every  other  State,  so 
anxious  were  the  founders  to  obliterate  differences, 
and  to  weld  all  parts  into  a  harmonious  whole. 

We  have  then  a  Government  made  by  slave  States 
and  free  States,  acting  together  as  equals,  who 
formed  a  Constitution  which  asserted  and  provided 
for  their  equality,  and  at  the  same  time  recognized 
slavery  and  gave  it  protection.  Is  it  unreasonable, 
therefore,  that  equality  should  be  claimed  by  the 
people  of  the  slave  States  ?  Is  it  not  true  that  they 
have  the  same  rights  as  the  people  of  the  North  in 
the  Territories,  which  are  national  property,  and 
that  these  rights  are  violated,  that  the  great  princi 
ple  of  equality  before  the  law  is  violated,  if  they 
should  be  excluded  from  this  domain,  which  is  theirs 
as  well  as  ours?  It  may  be  said  that  Congress  has, 
on  various  occasions,  prohibited  slavery  in  the  Terri 
tories.  True,  but  with  the  consent  and  co-operation 
of  the  Southern  States.  Without  that  consent  it 
could  not  have  been  done.  Slavery  has  changed  in 
its  scope  and  magnitude,  its  tendencies  and  pros 
pects.  When  Southern  men  consented  to  its  prohi 
bition,  they  hoped  and  believed  that  the  time  would 
come  when  it  could  be  abolished  altogether.  Cotton 
and  commerce  have  altered  their  views.  They  now 


OF   THE   TERRITORIES.  51 

seek  to  cherish  slavery,  and  to  extend  it.  They  see 
in  it  the  sources  of  wealth,  and  power,  and  progress. 
The  markets  of  the  world  demand  from  them  pro 
ducts  which  slavery  only  can  supply.  Negro  labor 
is  the  key  that  unlocks  for  them  the  treasures  of  all 
nations,  which  prevents  their  own  land  from  be 
coming  a  wilderness  again ;  and  negro  labor,  in  the 
present  state  of  Southern  society,  means  slavery. 
They  therefore  value  it  as  we  value  our  grain  fields, 
our  coal  and  iron,  and  are  determined  to  keep  it. 
They  have  as  much  right  to  these  as  to  their  former 
opinions,  and  to  have  them  represented  in  the  Go 
vernment.  Congress  has  plenary  power  over  the  Ter 
ritories,  often  exercised  on  this  subject  of  slavery ; 
but  should  Congress  exercise  its  power  to  the  injury 
of  the  Southern  people,  should  it  make  a  distinction 
between  them  and  the  North  in  regard  to  the  na 
tional  domain,  then  the  great  republican  principle 
of  equality  before  the  law  would  be  violated. 
Southern  politicians  have  not  strengthened,  but 
greatly  damaged  their  cause,  by  introducing  the 
false  and  wicked  dogma  that  slaves  are  mere  pro 
perty, — not  men,  but  things ;  that  the  relation  of 
master  to  slave  is  the  relation  of  man  to  merchan 
dise,  not  of  man  to  man ;  that  the  master  has  no 
duties,  the  slave  no  rights,  and  exists  not  for  his 


52  THE    LAW 

own  happiness,  but  wholly  for  the  mercenary  benefit 
of  his  owner.  This  detestable  doctrine,  contra 
dicted  by  philosophy,  by  religion,  by  morals,  and 
by  the  general  sentiment  and  practice  of  the  South, 
is  at  once  unnecessary  and  odious.  It  revolts  the 
moral  feeling  of  the  world,  and  is  of  no  use  in  the 
argument.  The  truth  is  sufficient.  To  mix  false 
hood  with  it  weakens  its  force.  Slavery  is  sanctioned 
by  the  Constitution.  The  people  of  all  the  States 
have  equal  rights  in  the  Territories.  To  exclude  the 
people  of  the  slave  States  therefore,  without  their 
consent,  would  be  unequal  and  opposed  to  the  spirit 
and  intent  of  the  Constitution.  This,  however,  is 
what  Congress  has  never  yet  done. 

There  is  another  principle  of  republicanism  em 
bodied  in  the  Constitution,  important  as  the  first, 
and  as  dear  to  those  who  framed  it,  and  to  the  Ameri 
can  people  of  the  present  time.  That  principle  is, 
that  all  just  and  free  government  must  be  founded 
on  the  consent  of  the  governed.  On  their  consent, 
not  necessarily  on  their  votes.  Votes  are  merely  one 
means  of  expressing  consent.  This  principle  is  the 
very  vital  essence  of  republican  liberty.  The  Con 
stitution  meant  to  assert  and  establish  it,  if  it  meant 
anything.  The  whole  structure  of  the  Government 
was  planned  for  the  purpose  of  subjecting  power  to 


OF   THE   TERRITORIES.  53 

the  will  of  the  people,  of  making  all  authority  repre 
sentative  and  responsible.  Congress  has  supreme 
power  over  the  Territories,  and  must  have,  because  of 
their  relations  to  the  Government.  But  this  power 
is  not  arbitrary  and  despotic.  Though  unchecked 
by  the  provisions  and  language  of  the  Constitution, 
it  is  not  therefore  lawless,  to  be  exercised  without 
the  guidance  of  constitutional  principles.  Is  there 
nothing  but  the  letter  of  the  law  ?  Do  American 
citizens  cease  to  have  rights  when  they  step  from  a 
State  into  a  Territory,  and  is  their  government  on 
one  side  of  a  dividing  line  a  Republic,  and  on  the 
other  side  a  despotism,  or  do  they  carry  with  them 
the  living  principles  of  the  Constitution  wherever 
they  dwell  under  the  flag  of  their  country  ?  They 
do  not  take  with  them  the  laws  of  the  States,  nor 
any  laws  except  those  given  to  them  by  Congress. 
They  cannot  go  into  the  Territories  at  all,  nt>r  own 
an  acre  of  land  in  them,  nor  form  a  Territorial 
Government,  nor  make  a  State  Constitution,  nor  be 
admitted  as  a  State,  without  the  consent  of  Congress. 
But  they  take  the  principles  of  American  liberty, 
and  if  they  live  solely  under  the  control  of  the 
General  Government,  that  Government  is  a  Republic, 
and  bound  to  use  its  authority  in  a  republican  man 
ner.  Republicanism  is  the  law  of  its  being,  all  its 


54  THE    LAW 

powers  are  trust  powers,  and  it  is  a  trustee  for  all 
who  live  beneath  its  sway. 

What  then  is  the  rule  of  conduct,  the  unwritten 
law,  sacred  as  if  written  in  the  Constitution  itself, 
that  should  guide  Congress  in  the  exercise  of  its 
power  over  a  Territory  ?  Is  it  the  will  of  the  North 
or  the  South,  of  the  majority  of  to-day,  or  to-mor 
row,  or  is  it  the  interests,  the  wants,  and  the  wishes 
of  the  people  of  the  Territory  ?  Because  Congress 
has  the  legal  control  of  the  Territories,  are  they  to 
be  used  as  the  foot-balls  of  parties,  as  mere  instru 
ments  and  weapons  in  their  strife,  the  property  of 
the  faction  that  may  happen  for  the  time  to  have  the 
control  of  Congress  ?  Have  the  people  of  the  Ter 
ritories  no  rights  because  they  have  no  votes,  and  is 
there  no  power  but  that  of  the  ballot-box?  The 
Territories  are  to  become  States.  Their  people  were 
American  citizens  before  they  went  into  them,  and 
are  to  become  American  citizens  again.  During  the 
interval  do  they  cease  to  be  Americans  ?  Did  they 
leave  behind  them  in  the  States  their  civil  rights  and 
the  principles  of  American  liberty,  and  among  these 
the  most  important  and  most  cherished  of  all,  the 
right  of  expressing  their  wishes  to  their  own  Govern 
ment,  and  of  having  those  wishes  respected  ?  Their 
wishes.  The  wishes  of  the  people  of  the  Territory, 


OF   THE   TERRITORIES.  55 

honestly  and  fairly  ascertained  and  deliberately  ex 
pressed,  not  the  passions  or  plans  of  the  North  or 
the  South,  or  of  one  or  the  other  political  party. 
Congress  is  not  the  agent  or  delegate  or  representa 
tive  of  the  Territories,  but  their  guardian.  During 
their  inchoate,  immature  condition,  the  rude  settlers 
are  deficient  in  knowledge  and  capacity  for  self- 
government,  which  come  with  wealth  and  numbers 
and  social  progress.  They  are  not  fit  to  be  trusted 
wholly  with  their  own  guidance  or  the  destinies  of 
the  future  State.  As  they  advance,  however,  in 
population,  their  opinions  are  entitled  to  more  con 
sideration,  and  a  Territorial  Government  is  provided 
to  be  the  organ  of  those  opinions.  The  power  of 
Congress  over  the  Territories  has  been  likened  to 
that  of  a  parent  over  a  child.  Is  not  this  power 
governed  by  duty  and  responsibility  ?  Is  a  father 
bound  to  regard  the  welfare  of  his  child,  or  the 
interests  and  designs  of  some  other  party?  Are  the 
inclinations  of  his  child,  as.  he  advances  to  maturity, 
in  reference  to  his  plans  of  life,  to  the  choice  of  a 
business  or  profession,  entitled  to  no  respect,  or  is 
the  father  to  have  no  guide  but  his  own  arbitrary, 
perhaps  ignorant  and  prejudiced  will  ?  All  power  is 
trust  power.  There  is  no  such  thing  known  to  ethics 
as  power  without  duty  and  responsibility.  The  power 


56  THE    LAW 

•of  Congress  over  the  Territories  is  coupled  with  the 
duty  of  exerting  it  solely  for  their  good  in  a  repub 
lican  spirit,  because  that  is  the  vital,  organic  spirit 
of  Congress  itself,  of  the  whole  framework  of  the 
Government  created  by  the  Constitution. 

It  has  been  said  that  the  Constitution  was  made 
for  the  States,  not  for  the  Territories.  That  its 
provisions  apply  therefore  only  to  the  States,  and 
the  power  of  Congress  over  the  Territories,  not 
being  limited  and  defined  in  the  Constitution,  is 
therefore  unlimited  and  supreme.  This  is  true,  but 
it  does  not  follow  that  Congress  may  rightfully  dis 
regard  the  fundamental  principles  of  liberty  which 
the  Constitution  was  intended  to  establish  and  pro 
tect  ;  and  though  its  language,  and  checks,  and 
limitations,  do  not  extend  to  the  Territories,  its 
spirit  and  intention  do.  There  is  a  distinction,  very 
obvious,  though  lost  sight  of  in  the  discussion  of 
this  question  both  by  Northern  and  Southern  politi 
cians,  between  the  rightful  possession  of  power  and 
the  exercise  of  it.  Legal  power  may  be  unjustly 
and  oppressively  used.  Constitutional  power  may 
be  unconstitutionally  used,  and  is  so,  when  consti 
tutional  principles,  or  the  settled  construction  of 
those  principles,  are  violated,  though  the  injured 
party  may  have  no  legal  redress,  save  an  appeal  to 


OF   THE   TERRITORIES.  57 

the  ballot-boxes  of  the  nation.  According  to  the 
theory  of  the  British  Constitution,  Parliament  is 
omnipotent.  This  and  the  maxim  that  the  King  can 
do  no  wrong,  mean  merely  that  there  is  no  positive 
law  to  limit  the  power  of  Parliament,  or  to  punish 
the  King  for  crime.  Yet  the  authority  both  of  Par 
liament  and  the  Crown  is  bounded  and  controlled  by 
well-settled  principles  and  rules,  sanctioned  by  time 
and  the  custom  of  ages,  and  the  rights  and  liberties 
of  England  are  safe  as  if  those  principles  were  de 
fined  in  a  formal  document,  and  will  be  safe  so  long 
as  love  of  liberty  and  reverence  for  right,  live  in  the 
hearts  of  the  English  people.  Among  these  rights, 
none  is  held  by  them  more  sacred,  though  they  do 
not  use  the  ballot-box,  than  the  right  of  self-govern 
ment.  This  is'the  right  of  all  Englishmen,  at  home 
and  abroad,  wherever  the  jurisdiction  of  their  Go 
vernment  extends.  Mr.  Burke,  the  most  eloquent 
and  profound  writer  on  the  British  Constitution, 
whose  opinions,  too,  were  emphatically  opposed  to 
democratic  theories,  asserts  it,  even  when  speaking 
of  the  revolted  Colonies  of  North  America,  over 
whom  the  authority  of  Parliament  was  surely  as 
complete  as  that  of  Congress  over  the  Territories. 
In  his  letter  to  the  sheriffs  of  Bristol  he  says : 
"  When  I  first  came  into  a  public  trust,  I  found 


58  THE    LAW 

Parliament  in  possession  of  unlimited  power  over 
the  Colonies.  I  could  not  open  the  statute  book, 
without  seeing  the  actual  exercise  of  it,  more  or 
less.  ...  I  had  very  earnest  wishes  to  keep 
the  whole  body  of  this  authority  perfect  and  entire 
as  I  found  it,  not  for  our  own  advantage  only,  but 
principally  for  the  sake  of  those  on  whose  account 
all  just  authority  exists  ;  I  mean  the  people  governed. 
.  .  .  .  No  legislative  rights  can  be  exercised, 
without  regard  to  the  general  opinions  of  those  who 
are  to  be  governed.  ...  In  effect  to  follow,  not 
to  force  the  public  inclination ;  to  give  a  direction, 
a  form,  a  technical  dress,  and  a  specific  sanction  to 
the  general  sense  of  the  community r,  is  the  true  end 
of  legislation."  Such  was  the  language  of  this  phi 
losophic  statesman  as  to  the  rights  of  English  sub 
jects  in  American  Colonies.  Are  the  rights  of 
American  citizens  in  American  Territories  less 
worthy  of  respect  ? 

Slavery  exists  in  many  States  of  this  Union  by 
virtue  of  their  laws  and  the  sanction  of  the  Con 
stitution.  These  States  have  equal  rights  with  the 
others  to  the  Territories,  and  the  people  of  all  the 
States,  when  they  go  to  the  Territories,  are  subject 
to  the  power  of  Congress.  Should  a  Territorial 
Legislature,  fairly  representing  the  people,  make 


OF    THE   TERRITORIES.  59 

laws  for  the  protection  of  slavery,  and  present 
them  to  Congress,  saying,  "  Behold,  we  came  to 
this  Territory  from  Southern  States.  Our  land  is 
fertile ;  it  will  produce  rice  and  cotton,  but  only  by 
the  labor  of  the  Negro.  We  have  brought  with  us 
our  slaves.  We  have  brought  also  our  opinions 
and  our  habits.  We  approve  of  slavery ;  our 
fathers  and  the  fathers  of  our  country  approved 
it,  and  provided  for  its  protection.  The  labor  of 
our  slaves  and  the  wealth  it  can  bring  from  our 
land,  are  our  property.  We  have  made  laws  for 
the  security  of  this  property,  and  we  ask  that  these 
laws  be  ratified  and  confirmed."  Would  it  be  any 
answer  to  this  demand,  that  the  majority  of  Con 
gress  consider  slavery  an  evil  and  a  crime,  when 
the  very  organic  law  whence  Congress  derives  its 
power  says  that  it  is  no  evil  or  crime,  when  owners 
of  slaves  were  equal  parties  to  the  making  of  that 
law,  and  when  the  first  principle  of  that  law  is, 
that  all  political  power  should  be  exercised  in  ac 
cordance  with  the  wishes  of  the  governed  ?  In 
like  manner,  suppose  the  demand  came  from  a 
Territory  settled  by  Northern  men,  whose  Legis 
lature  had  passed  laws  prohibiting  slavery.  What 
reply  could  be  made  to  them  when  they  declared, 
that  in  their  eyes  slavery  was  a  curse  and  a  wrong, 


60  THE    LAW 

that  the  free  labor  of  the  white  man  suited  their 
soil  and  climate,  that  their  wish  was  to  keep  their 
land  for  their  own  race,  and  not  for  the  Negro, 
to  keep  it  free  from  slavery  for  themselves  and 
their  posterity  ?  Would  it  not  be  a  monstrous 
violation  of  the  principles  of  republican  govern 
ment,  should  Congress  reject  such  a  demand,  dis 
regard  the  sober,  matured,  and  known  wishes  of 
the  people,  their  moral  sentiment  and  feelings  of 
right,  their  hopes  and  plans  for  themselves  and 
their  children,  and  attempt  to  force  slave  labor 
and  a  slave  code  upon  them  against  their  conscience 
and  honest  conviction  ?  Yet  this  is  the  duty  of 
Congress  according  to  the  last  doctrine  of  the 
South.  Slavery  is  already  in  the  Territory,  it  is 
said,  by  virtue  of  the  Constitution,  and  neither  the 
people  nor  Congress  can  take  it  out.  Nay,  because 
slavery  cannot  defend  itself,  nor  can  the  Constitu 
tion  defend  it  without  laws,  Congress  is  bound  to 
pass  slave  codes  for  the  Territories,  in  defiance  of 
the  opinions  and  wishes  of  their  people,  and  to  en 
force  these  codes  by  the  military  force  of  the  na 
tion.  Such  are  the  principles  now  put  forth  by 
Southern  politicians,  confirmed  by  the  Supreme 
Court,  and  offered  by  Northern  Democrats  to  the 
American  people. 


OF   THE   TERRITORIES.  61 

If  Congress  be  the  government  of  the  Territories, 
its  power  must  be  exerted  for  the  good  of  the 
people  who  live  in  them,  not  to  serve  the  designs 
of  people  who  do  not  live  in  them.  The  Territories 
are,  for  a  time,  placed  under  the  guardian  care  of 
Congress  for  this  very  purpose.  Under  this  pro 
tection  the  people  of  the  States,  when  they  go  to 
the  Territories,  meet  on  common  ground,  and  the 
two  great  principles  of  republicanism, — self-govern 
ment  and  equality  before  the  law, — work  harmo 
niously  together.  All  have  an  equal  right  to  go  to 
the  Territories,  to  vote  when  there  for  or  against 
slavery,  to  elect  a  Territorial  Legislature,  and  to 
ask  and  expect  from  Congress  laws,  or  the  approval 
of  laws,  according  to  the  will  of  the  majority,  fairly 
and  honestly  ascertained.  This  is  true  equality  for 
North  and  South ;  it  is  the  equality  that  the  people 
enjoy  in  the  States,  and  it  is  all  that  the  law  can 
give.  It  cannot  give  equality  of  power  any  more 
than  it  can  give  equality  of  population,  on  which 
political  power  depends.  When  it  shall  happen 
that  a  Territory  in  which  there  are  slaves  and 
masters,  and  the  masters  are  a  majority  of  the 
people,  ask  of  Congress  laws  for  the  protection  of 
slavery,  and  their  petition  is  rejected,  then  the 
South  will  have  reason  to  complain  that  its  rights 

6 


62  THE    LAW 

are  violated.     But  this  is  a  thing  that  Congress  has 
not  yet  done. 

It  is  satisfactory  to  find  the  truth  of  these  prin 
ciples,  and  the  justice  and  wisdom  of  the  old  law, 
vindicated  by  the  legislation  of  Congress  on  the 
subject  of  slavery  in  the  Territories,  from  the  earli 
est  period  of  our  history,  until  the  new  doctrines 
introduced  by  the  Kansas  and  Nebraska  Bill.  The 
duty  of  Congress  to  exercise  its  power  for  the  bene 
fit  of  the  people  of  the  Territories,  and  with  a  just 
regard  both  to  their  wishes  and  to  the  equal  rights 
of  the  States,  are  principles  which,  sound  in  theory, 
have  been  successfully  applied  in  practice.  They 
have  been  at  times  denied,  and  serious  dangers  have 
been  caused  by  attempts  to  resist  them,  but  princi 
ples  of  Government  are  strengthened  and  confirmed 
by  the  shock  of  conflict,  if  they  triumph ;  and  these 
have  triumphed  in  every  contest  whenever  opposed, 
from  1789,  when  the  first  Congress  assembled  under 
the  Constitution,  to  1854,  when  they  were  over 
thrown  by  the  Kansas  and  Nebraska  Bill ;  and  that 
bill  has  been  the  prolific  source  of  agitation  and  dis 
cord  ever  since.  Before  the  passage  of  that  false 
and  fatal  law,  the  right  of  Congress  to  legislate  for 
the  Territories  on  all  subjects  was  never  disputed. 
The  only  question  that  arose  was,  whether  the  exer- 


OF   THE   TERRITORIES.  63 

cise  of  the  right  was  expedient  and  just  in  the  par 
ticular  case,  and  so  strong  were  the  principles  of 
the  Constitution,  that  they  resisted  every  attempt 
to  prohibit  slavery  in  any  Territory,  without  the 
consent  and  co-operation  of  the  South,  or  against 
the  wishes  of  the  people  of  the  Territory.  Slavery 
was  excluded  from  the  Northwest  Territory  in  1789, 
in  conformity  to  the  Ordinance  of  1787.  This  was 
a  Southern  measure,  passed  to  execute  a  contract 
made  by  the  Government  of  the  Confederation  with 
Southern  States,  and  the  prohibition  of  slavery  was 
part  of  that  contract.  All  the  provisions  of  the 
Ordinance  of  1787  were  afterwards,  in  1790  and 
1802,  extended  to  the  Southwest  Territory,  except 
the  clause  forbidding  slavery,  and  this  exception  was 
made  because,  in  that  Territory,  slavery  already 
existed  and  was  likely  to  continue,  being  suited  to 
its  soil  and  climate.  When  Louisiana  was  acquired, 
in  1803,  Congress  assumed  absolute  control  over  it, 
by  a  bill  drawn  by  Mr.  Jefferson,  and  passed  by 
Southern  votes.  This  bill  did  not  abolish  slavery, 
because  Louisiana  was  then,  as  now,  inhabited  by 
planters  and  the  owners  of  slaves,  but  absolute 
power  over  the  subject  was  claimed  by  Congress  and 
exerted.  Although  the  foreign  slave-trade  was 
then  constitutionally  lawful  for  the  people  of  the 


64  THE    LAW 

States,  it  was  prohibited  to  the  people  of  this  Terri 
tory.  No  slave  imported  since  May  1,  1798,  was 
permitted  to  enter  the  Territory  at  all,  the  bill  thus 
anticipating  the  .time  when  the  slave-trade  could  be 
prohibited  to  the  people  of  the  States,  and  showing 
that  the  public  men  of  the  period,  did  not  consider 
the  limitations  of  the  Constitution  applicable  to  the 
Territories.  The  provisions  of  this  act  were  applied 
to  the  case  of  Florida  in  1819  and  1822.  In  1819, 
an  effort  was  made  to  prohibit  slavery  in  the  Terri 
tory  of  Arkansas  while  it  remained  a  Territory,  and 
without  reference  to  its  future  condition  as  a  State. 
Arkansas  was  in  the  South,  it  was  suited  to  slave 
labor  in  soil  and  climate,  slavery  existed  in  it  and 
its  people  approved  of  slavery.  The  South  opposed 
the  restriction,  and  Congress  rejected  it.  No  one 
denied  the  power  of  Congress  over  the  subject ;  on 
the  contrary,  that  power  was  expressly  asserted  and 
admitted  by  Southern  men  during  the  debate.  The 
measure  was  resisted  wholly  on  the  ground  that  it 
was  inexpedient  and  unjust,  both  to  the  South  and 
to  the  people  of  the  Territory.  In  1820  a  bill  was 
introduced  to  prohibit  slavery  in  all  Territory  north 
of  latitude  36°  30'.  The  Territory  of  Missouri  was 
included  in  these  limits.  Its  people  approved  of 
slavery,  were  owners  of  slaves,  and  remonstrated 


OF   THE   TERRITORIES.  65 

with  earnestness  against  the  bill.  They  were  sup 
ported  in  their  appeal  by  Southern  members  of 
Congress.  After  a  severe  and  protracted  contest, 
Missouri  was  excepted  from  the  operation  of  the 
bill,  and  it  became  a  law,  and  that  law  was  the  cele 
brated  Missouri  Compromise,  passed  by  the  votes  of 
Southern  men,  approved  by  a  Southern  President, 
and  by  a  cabinet,  a  majority  of  which  was  also  from 
the  South.  Some  of  these  men  were  the  most 
eminent  for  talents  and  virtue,  then  in  the  country. 
It  may  be  said  that  this  law  was  a  violation  of  the 
equal  rights  of  the  Southern  people,  by  excluding 
them  from  a  large  portion  of  the  national  domain. 
The  answer  is,  not  merely  that  this  was  done  with 
their  consent,  their  representatives  having  approved 
the  law^,  but  that  the  law  did  recognize  their  rights, 
by  dividing  between  them  and  the  Northern  people 
all  the  Territory  then  possessed  by  the  Government. 
It  may  also  be  said,  that  by  prospectively  prohibit 
ing  slavery,  the  possible  wishes  of  the  future  in 
habitants  of  this  vast  region,  then  for  the  most  part 
a  wilderness,  were  disregarded.  But  what  would 
probably  be  their  wishes  was  respected,  and  go 
verned  the  selection  of  the  line ;  else  why  not  forbid 
slavery  south  of  it,  and  leave  the  north  open  ? 
Reason  and  experience  both  taught  that  the  climate 

6* 


66  THE    LAW 

and  soil  of  the  North  are  unfit  for  slavery  ;  that  the 
Negro  cannot  thrive  and  work  there,  but  the  white 
man  can ;  and,  therefore,  the  land  would  be  occu 
pied  by  the  dominant  race,  to  the  exclusion  of  the 
Negro.  The  law  was  a  prediction,  and  the  result 
has  proved  its  truth.  In  none  of  the  States  into 
which  the  Northwest  Territory  has  been  divided, 
have  the  people  ever  desired  to  introduce  slavery, 
and  as  soon  as  Kansas  was  opened,  though  the  re 
striction  was  removed,  settlers  from  the  North  filled 
it,  as  the  surrounding  air  rushes  into  a  vacuum.  It 
is  to  be  remembered,  also,  that  the  law  was  a  com 
promise,  and  something  was  to  be  surrendered  by 
each  party.  It  was  intended  to  restore  peace  at  a 
time  when  sectional  strife  threatened  the  repose  of 
the  country  and  the  safety  of  the  Union,  and  it  did 
restore  peace.  Neither  as  a  law  nor  a  compromise 
was  it  a  fetter  on  the  future.  Should  altered  cir 
cumstances  and  changed  opinions  render  expedient 
another  arrangement,  the  law  might  be  repealed.  It 
has  been  repealed ;  whether  wisely  or  not,  time  has 
already  shown. 

The  power  of  Congress  over  slavery  in  the  Terri 
tories  was  again  exerted  in  the  year  1845,  wiien 
Texas  was  admitted  into  the  Union.  The  Missouri 
Compromise  was  re-enacted.  In  all  of  Texas  north 


OP   THE    TERRITORIES.  67 

of  36°  30',  slavery  was  prohibited;  in  all  south  of 
that  line,  slavery  was  permitted,  if  the  people  should 
desire  it.  This  law  was  accepted  by  Texas,  which 
was  an  independent  sovereignty,  annexed  by  com 
pact  to  this  country,  and  this  compact  also  passed 
by  Southern  votes  and  was  approved  by  a  Southern 
Cabinet,  of  which  Mr.  Calhoun  was  Secretary  of 
State.  It  was  also  emphatically  approved  by  Mr. 
Buchanan,  because  "  it  went  to  re-establish  the  Mis 
souri  Compromise,  by  fixing  a  line  within  which 
slavery  was  in  future  to  be  confined."  He  declared 
that  when  that  Compromise  was  made,  he  "  had  set 
his  foot  on  the  solid  ground  then  established,  and 
there  he  would  let  the  question  stand  forever."  Four 
years  after,  the  Missouri  Compromise  was  again 
sanctioned,  when  a  Territorial  government  was  or 
ganized  for  Oregon,  in  1848.  The  result  of  the  war 
with  Mexico  was  the  acquisition  of  a  large  domain 
from  that  country.  It  became  necessary  to  divide 
this  region  into  Territories,  and  to  organize  its 
people  into  Territorial  governments.  A  dispute  at 
once  arose  between  North  and  South  for  the  posses 
sion  of  these  Territories,  rivalling  in  violence  and 
bitterness  the  contest  which  was  closed  by  the  Mis 
souri  Compromise  of  1820.  In  the  year  1849  an 
attempt  was  made  to  extend  the  Missouri  Compro- 


68  THE    LAW 

mise  line  to  the  Pacific,  with  a  provision  expressly 
recognizing  slavery  south  of  that  line ;  in  other 
words,  to  introduce  slavery,  not  merely  where  it 
did  not  exist,  but  where  it  was  opposed  by  the  habits 
and  opinions  of  the  inhabitants,  and  by  the  condi 
tions  of  soil  and  climate.  Now  it  so  happened  that 
in  these  Territories,  California,  New  Mexico,  and 
Utah,  slavery  was  excluded  by  law  at  the  time  of 
the  acquisition.  Congress  respected  that  law  as  an 
expression  of  the  wishes  of  the  people, -and  refused 
to  legislate  on  the  subject  at  all.  It  would  not 
prohibit  slavery,  because  it  was  already  prohibited ; 
it  would  not  establish  it,  because  it  was  not  suited 
to  the  wants  or  wishes  of  the  people.  These  reasons 
were  embraced  by  Mr.  Clay  in  the  Compromise 
measures  of  1850,  in  these  words  : 

"  Resolved,  That,  as  slavery  does  not  exist  ly  law 
and  is  not  likely  to  be  introduced  into  any  territory 
acquired  by  the  United  States  from  the  Republic  of 
Mexico,  it  is  inexpedient  to  provide  by  law,  either 
for  its  introduction  into  or  exclusion  from  any  part 
of  the  said  territory;  and  that  appropriate  Terri 
torial  Governments  ought  to  be  established  by  Con 
gress  in  all  of  the  said  territory,  not  assigned  as 
the  boundaries  of  the  proposed  State  of  California, 
without  the  adoption  of  any  restriction  or  condition 


OF   THE   TERRITORIES.  69 

on  the  subject  of  slavery."  This  bill  was  also  a 
compromise  of  the  pretensions  of  parties,  like  the 
Missouri  Compromise,  for  the  sake  of  peace.  It 
yielded  no  principle,  but  on  the  contrary  affirmed 
and  was  founded  on  all  those  by  which  the  legisla 
tion  of  the  country  had  been  guided  since  1Y89. 
The  power  of  Congress  was  implied  by  the  decla 
ration  that  to  exercise  it  in  the  particular  case  was 
"inexpedient."  The  present  and  probably  future 
wishes  and  interests  of  the  people  of  the  Territories 
were  respected,  and,  as  to  the  equal  rights  of  South 
or  North,  the  only  rights  their  citizens  had,  was  to 
go  into  the  Territories  if  they  chose,  and,  when 
there,  to  obey  the  laws  if  they  could  not  change 
them  by  their  votes.  This  measure  had  also  the 
merit  of  settling  the  question  of  slavery  as  to  all 
the  territory  then  belonging  to  the  Government, 
and  thus  withdrawing  a  cause  of  dangerous  excite 
ment  from  the  politics  of  the  country. 

It  appears,  then,  that  up  to  a  period  so  late  as 
1850,  the  uniform  practice  of  the  Government  had 
established  the  rightful  power  of  Congress  over  the 
Territories,  unlimited  by  any  provisions  of  the  Con 
stitution,  and  had  established  also,  that  this  power 
ought  to  be  so  exercised  as  not  to  violate  the  rights 
of  the  States  or  of  the  people  of  the  Territories. 


70  THE    LAW 

These  principles  have  also  been  exemplified  in  the 
organization  of  the  Territorial  Governments.  The 
Territories  are  treated  as  infant  republics,  the  wards, 
until  they  attain  their  majority,  of  a  mature  re 
public  ;  inchoate  States,  trusted  under  watchful  care, 
until  they  learn  how  to  use  them,  with  political 
power  and  the  apparatus  for  applying  it,  as  chil 
dren  are  trusted  with  guns  and  horses.  They  have 
Governors,  Judges,  Marshals,  but  these  are  ap 
pointed  by  the  President,  and  are  removable  by 
him.  They  are  his  agents,  whose  duty  it  is  to  ad 
minister  his  authority  and  to  advise  him  as  to  the 
condition  of  the  Territory.  There  are  Territorial 
Legislatures,  elected  by  the  people,  but  all  the  laws 
are  subject  to  revision  and  repeal  by  Congress. 
They  are  not  so  much  laws,  therefore,  as  petitions, 
informing  Congress  of  the  needs  and  desires  of  the 
people.  A  Territory  also  sends  a  delegate  to  Con 
gress,  but  he  has  no  vote.  His  office  also  is  to  give 
information  and  to  represent,  not  the  sovereign  will, 
but  the  opinions  and  sentiments  of  the  people,  and 
to  explain  to  Congress  their  circumstances  and  in 
terests.  In  all  these  provisions,  whilst  the  supreme 
authority  of  Congress  is  asserted,  ample  care  is 
taken  that  it  may  be  exerted  for  the  good  of  the 
Territory,  and  that  those  subjected  to  it  shall  have 


OF   THE   TERRITORIES.  71 

the  means  of  making  their  wishes  known.  They 
have  not  the  means  of  making  their  will  obeyed, 
and,  should  they  be  oppressed  and  governed  arbi 
trarily,  not  for  their  own  benefit,  but  to  serve  the 
designs  of  other  parties,  they  have  no  remedy  but 
an  appeal  to  the  sympathy  and  justice  and  ballot- 
boxes  of  their  countrymen.  This  appeal  was  made 
in  the  case  of  Kansas,  and  not  in  vain. 

Under  the  old  law  and  practice,  therefore,  sla 
very,  until  the  year  1850,  had  not  only  been  safe, 
but  had  steadily  and  rapidly  grown  in  power  and 
extent.  It  had  grown  indeed  into  gigantic  propor 
tions  ;  and  the  law  was  not  an  iron  ring,  but  an 
elastic  band,  like  the  bark  of  a  tree,  and  permitted 
its  growth.  In  fact,  the  law  restrained  slavery 
only  where  it  was  restrained  by  the  superior  laws 
of  nature.  Wherever  soil  and  climate  were  adapted 
to  it,  it  was  free  to  go ;  it  was  restricted  only  where 
it  could  not  go  or  could  not  remain.  The  law  there 
fore  gave  to  slavery  all  that,  from  its  own  nature,  it 
can  ever  attain,  the  privilege  of  seeking  a  con 
genial  home  wherever,  in  our  broad  territories,  it 
can  find  one.  No  change  has  taken  place  or  ever 
can,  in  the  position  of  slavery,  to  require  a  differ 
ent  law.  The  line  of  the  Missouri  Compromise 
was  wisely  chosen.  Slavery  can  never  go  north 


72  THE   LAW 

of  that  line;  on  the  contrary,  from  the  operation 
of  general  causes,  stronger  than  party  "platforms," 
it  is  gradually  receding  to  the  south  of  it. 

But,  to  possess  every  advantage  and  scope  not 
denied  by  the  laws  of  nature  did  not  satisfy 
Southern  politicians.  In  the  year  1854,  aided  by 
Northern  Democrats,  they  succeeded  in  passing  the 
Kansas  and  Nebraska  Bill,  by  which  the  well-set 
tled  principles  of  the  Constitution,  ancient  usage, 
and  a  solemn  compact,  were  alike  overthrown. 
How  cautiously,  insidiously,  and  cunningly  this 
bill  was  concocted,  by  what  intrigues,  arts,  menaces, 
and  party  coercion  it  was  introduced,  and  by  what 
frauds,  machinations,  and  tyrannical  abuse  of  power 
it  was  passed,  ha,ve  been  explained  by  Mr.  Benton 
in  his  "Examination  of  the  Dred  Scott  Case." 
These  proceedings  were  not  creditable  to  the  South  or 
its  adherents,  but  to  dilate  upon  them  is  apart  from 
the  purpose  of  this  argument.  The  bill  itself,  so  far 
as  it  relates  to  the  present  question,  is  in  these  words : 

"  The  Constitution  and  all  laws  of  the  United 
States,  which  are  not  locally  inapplicable,  shall  have 
the  same  force  and  effect  within  the  said  Territory 
of  Nebraska  as  elsewhere  in  the  United  States,  ex 
cept  the  eighth  section  of  the  act  preparatory  to  the 


OF   THE   TERRITORIES.  73 

admission  of  Missouri  into  the  Union,  approved 
March  6th,  1820,  which,  being  inconsistent  with  the 
principles  of  non-intervention  by  Congress  with 
slavery  in  the  States  and  Territories,  as  recognized 
by  the  Legislature  of  1850,  commonly  called  the 
Compromise  Measures,  is  hereby  declared  inoperative 
and  void ;  it  being  the  true  intent  and  meaning  of 
this  Act,  not  to  legislate  slavery  into  any  Territory 
or  State,  nor  to  exclude  it  therefrom,  but  to  leave 
the  people  thereof  perfectly  free  to  form  and  regu 
late  their  domestic  institutions  in  their  own  way, 
subject  only  to  the  Constitution  of  the  United 
States." 

The  contradictions,  duplicity,  and  absurdity  of  this 
law  are  obvious  at  once.  The  first  sentence  an 
nounces  a  change  in  the  settled  principles  and  policy 
of  the  Government,  else  why  declare  that  the  Con 
stitution  shall  extend  to  Nebraska,  if  it  already  ex 
tended  there.  It  and  the  laws  of  the  United  States 
are  to  have  the  same  force  and  effect  there  as  "  else 
where"  Elsewhere  can  only  mean  States,  which 
are  also  put  on  the  same  footing  with  Territories  in 
other  parts  of  the  bill.  What  provisions  of  the  Con 
stitution  are  locally  inapplicable  to  them,  the  bill 
does  not  mention,  but  as  the  Constitution  does  not 
give  to  their  people  a  State  Government  or  the  right 

7 


74  THE    LAW 

to  vote  for  a  President  or  for  Congress,  or  subject 
them  to  taxation  or  provide  for  them  a  Federal  Judi 
ciary  ;  and  as  all  its  clauses,  from  beginning  to  end, 
except  that  which  invests  Congress  with  absolute 
control  of  the  soil  of  the  Territories,  apply  in  ex 
press  terms  to  States,  it  would  be  difficult  to  find  any 
other  provision  in  it  that  does  apply.  Next  comes 
the  repeal  of  the  Missouri  Compromise.  The  reason 
given  for  this  is,  that  it  is  inconsistent  with  the  non 
intervention  by  Congress  with  slavery  recognized 
in  the  Compromise  of  i860.  But  this  is  a  manifest 
and  most  impudent  falsehood,  for  that  law  declares 
positively,  that  Congress  does  not  intervene,  because 
in  the  particular  case,  it  is  "  inexpedient"  to  do  so, 
and  gives  the  reason  why  it  is  inexpedient,  as  before 
stated.  The  power  of  Congress  was  asserted  by  Mr. 
Clay  who  made  the  law,  and  the  terms  of  it  were 
chosen  for  the  very  purpose  of  preventing  any  infer 
ence  being  drawn  from  it,  against  that  power.  The 
bill  goes  on  to  declare  that  it  does  not  intend  to 
"  legislate  slavery  into  any  Territory  or  State,  or  to 
exclude  it  therefrom."  The  meaning  of  this  sen 
tence  is  not  easy  to  find  out.  "Why  has  the  word 
"State"  a  place  in  it?  Does  it  mean  that  if  the 
intention  of  Congress  were  different,  it  has  the  power 
to  meddle  with  slavery  in  the  States,  either  to  intro- 


OF    THE   TERRITORIES.  75 

duce  it  or  exclude  it  ?  If  Congress  has  no  such 
power,  how  can  it  have  any  "intent"  on  the  subject 
at  all  ?  Power  or  no  power,  however,  Congress  on 
this  occasion  does  not  exercise  it,  for  the  bill  gene 
rously  declares,  that  it  leaves  "the  people  thereof," 
that  is  of  States  as  well  as  Territories,  "  perfectly  free 
to  form  and  regulate  their  domestic  institutions  in 
their  own  way."  What  else  besides  their  "domestic 
institutions,"  the  Territories  and  States  are  free  to 
regulate,  the  bill  does  not  say.  Is  slavery  a  domes 
tic  institution?  At  the  time  the  bill  was  passed, 
slavery  was  so  considered,  and  from  the  context  is 
no  doubt  meant  to  be  included  in  that  term.  But 
since  then,  the  case  of  Dred  Scott  has  been  decided, 
by  which  slaves  are  declared  to  be  mere  merchandise. 
So  that  it  is  a  question  whether  the  bill  would  now 
apply  to  them.  Marriage,  however,  is  a  "domestic 
institution,"  which,  it  seems,  Territories  as  well  as 
States  may  regulate  in  their  own  way,  and  the  Ter 
ritory  of  Utah  took  the  liberty  of  doing  so,  even 
without  the  previous  sanction  of  this  law.  It  is  re 
markable,  too,  that  the  bill,  whilst  declaring  the  per 
fect  freedom  of  the  Territories,  should  still  have  left 
them  subject  to  the  power  of  the  President,  who,  as 
before,  is  permitted  to  appoint  their  Governor,  Judges, 
and  Marshals,  officers  who  are  his  agents,  and  with- 


76  THE   LAW 

out  whose  sanction,  the  acts  of  the  Territorial  legis 
lature  can  neither  become  laws,  nor  be  construed  and 
applied  nor  executed.  So  that  the  will  of  the  people 
may  be  defeated,  should  it  happen  to  be  opposed  to 
the  will  of  the  President,  as  was  seen  in  the  case  of 
Kansas,  the  very  case  for  which  this  new  law  was 
intended.  Why,  therefore,  was  power  given  to  the 
Territories,  and  the  means  of  exercising  it  limited  or 
withheld  ?  How  is  it  possible  to  put  States  and  Ter 
ritories  on  the  same  level,  without  giving  to  the  latter 
the  power  of  States,  not  merely  as  to  self-govern 
ment,  but  as  to  representation  in  Congress  and  the 
election  of  the  President  ?  The  whole  system  by  which 
the  Territories  have  been  heretofore  held  in  a  con 
dition  of  pupilage  and  preparation  to  become  States 
has  been  abolished  by  this  law,  which,  nevertheless, 
does  not  make  them  States.  They  are  neither  States 
nor  Territories,  yet  their  inhabitants  are  Americans, 
their  country  forms,  geographically,  a  part  of  the 
nation,  and  the  General  Government  is  the  proprietor 
of  their  soil,  may  sell  it  or  refuse  to  sell  it.  What 
then  is  their  position  ?  It  would  be  difficult  for  the 
inventors  of  the  new  law  to  define  it. 

But  the  word  "  State"  was  not  used  without  a 
purpose.  It  has  a  latent  meaning  in  relation  to  the 
clause  by  which  the  Constitution  is  extended  to  the 


OF   THE   TERRITORIES.  77 

Territories.  According  to  modern  Southern  doc 
trines,  the  Constitution  carries  slavery  along  with 
it,  and  it  was  to  fortify  this  doctrine  that  Territo 
ries  are  classed  with  States  in  regard  to  slavery. 
It  is  true  that  the  popular  sovereignty  clause  might 
defeat  the  plans  of  the  South  as  to  Northern  Terri 
tory.  The  bill,  however,  was  not  intended  only  for 
Kansas,  but  for  future  Southern  acquisitions.  It 
was  hoped  and  expected  that  the  people  of  Kansas 
would  accept  slavery,  but  it  was  deemed  certain 
that  the  people  of  Cuba  and  other  Southern  regions 
yet  to  be  annexed  would  accept  it.  The  important 
thing,  therefore,  was  to  get  the  subject  beyond  the 
control  of  Congress.  Two  years  afterwards  the 
Supreme  Court  gave  to  the  South  a  higher  ground 
to  stand  upon,  and  its  politicians  have  risen  in  their 
demands.  If  the  Dred  Scott  case  be  law,  slavery 
is  in  the  Territories,  though  there  be  no  slaves,  in 
dependent  of  Congress  and  the  people,  waiting  the 
arrival  of  slaves,  and  no  earthly  power  can  take  it 
out.  Armed  with  this  more  efficient  weapon,  the 
Kansas  and  Nebraska  Bill  has  become  obsolete  and 
useless  to  the  South,  like  the  old-fashioned  musket 
compared  with  a  Minie  rifle,  and  has  been  thrown 
aside.  It  still  remains,  however,  on  the  statute 
book,  a  feat  of  legislation  which,  for  mendacity, 

7*    > 


78  THE   LAW 

contradictory  doctrines,  illogical  statement,  and 
shortsighted  cunning,  is  disgraceful  to  Congress, 
and  worthy  of  the  scenes  and  practices  by  which  its 
enactment  was  surrounded  and  accomplished. 

By  abstract  reasoning  and  by  the  evidence  of 
history,  it  thus  appears  that  the  principles  of  the 
Constitution  and  the  settled  practice  of  the  Govern 
ment  under  it,  have  heretofore  protected  slavery, 
and  are  sufficient  for  its  protection  in  its  present 
state,  and  for  its  legitimate  claims.  Neither  these 
principles,  therefore,  nor  the  usage  that  has  grown 
out  of  them,  should  be  changed.  Not  by  the  North, 
because  they  are  just  and  true,  and  the  law ;  not  by 
the  South,  for  the  same  reasons,  and  because  they 
give  to  it  all  that  its  people  can,  in  reason,  ask  or 
hope  for,  by  means  of  any  other  principles  or  laws 
which  they  can  substitute.  Nevertheless,  by  each 
one  of  the  three  parties  into  which  the  country 
seems  likely  to  be  divided,  some  or  all  of  these 
principles  are  denied,  and  their  symmetry  as  a  con 
sistent  whole  is  mutilated  and  marred.  The  ex 
treme  Southern  and  Democratic  party  violate  them 
all,  by  withdrawing  slavery  from  the  control  both 
of  Congress  and  of  the  people  of  the  Territories. 
The  rights  of  both  these  are  thus  disregarded,  and 


OF   THE   TERRITORIES.  79 

the  rights  also  of  the  Northern  States.  Their  peo 
ple  are  perpetually  excluded  from  the  equal  enjoy 
ment  of  the  Territories,  so  loudly  claimed  by  the 
South,  for  they  cannot  carry  into  them  their  opinions 
and  moral  convictions,  -which  are  more  valuable  than 
property.  They  are  to  find  in  the  Territories,  if 
Democracy  and  the  South  are  to  prevail,  a  slave 
code,  with  or  without  slaves,  made  by  Congress. 
They  are  therefore  to  live  under  laws  imposed  on 
them  without  their  consent,  and  which  violate  their 
sense  of  right.  Against  these  laws  their  wishes, 
though  unanimous,  cannot  prevail.  The  South  is 
unjust.  If  its  citizens  have  a  right  to  take  with 
them  into  the  Territories  their  property,  surely 
Northern  men  have  an  equal  right  to  take  with 
them  their  consciences. 

The  extreme  Northern,  or  Free-soil,  or  Abolition 
party,  on  the  other  hand,  is  only  less  guilty  than 
the  first,  because  it  only  violates  two  of  the  princi 
ples  of  the  Constitution.  This  party  asserts  the 
legal  authority  of  Congress,  but  declares  that  it  is 
the  right  and  duty  of  Congress  to  exclude  slavery 
forever  from  all  the  Territories,  without  regard  to 
the  wants,  habits,  condition,  or  wishes  of  their  in 
habitants,  or  to  the  requirements  of  climate  and 
soil.  According  to  this  party,  the  Territories  are  to 


80  THE    LAW 

be  governed  solely  to  suit  its  own  ethics,  and  not 
for  the  benefit,  or  according  to  the  wishes  of  the 
people  who  live  in  them.  The  rights  of  these  peo 
ple,  the  rights  of  the  South,  the  republican  principle 
of  equality  before  the  law,  the  other  republican 
principle  that  political  power  is  trust  power,  to  be 
exercised  for  the  good  and  according  to  the  opinions 
of  the  governed,  are  thus  alike  contemned. 

Between  these  two  extremes,  a  third  party  has 
arisen.  This  is  the  Popular  Sovereignty  party.  Ac 
cording  to  its  doctrine,  the  will  of  the  people  of  the 
Territory  is  supreme,  and  wholly  independent  of  Con 
gress.  Two  important  principles  are  thus  disregarded : 
the  rightful  authority  of  the  General  Government,  and 
the  right  of  the  people  of  the  Territories  to  its  just 
and  wise  use  for  their  benefit.  They  have  a  right  to 
this,  as  a  child  has  a  right  to  the  superior  judgment 
of  his  father.  It  is  for  the  child's  advantage  to  be 
restrained  in  his  folly  or  vice, — to  be  guided  in  his 
ignorance  ;  it  is  for  his  advantage,  too,  that  his  men 
tal  bias,  the  tendencies  of  his  character,  the  exigen 
cies  of  his  future  position  in  life,  should  be  considered 
and  provided  for.  The  settlers  of  a  new  Territory 
are  often  rude,  ignorant,  and  turbulent  adventurers, 
unfit  for  self-government.  They  require  restraint,  as 
is  proved  by  the  example  of  Utah.  They  require, 


OF   THE    TERRITORIES.  81 

also,  just  respect  to  their  opinions  and  convictions, 
to  the  hopes  of  their  future,  growing  out  of  the  con 
ditions  of  soil,  climate,  and  population,  as  was  shown 
in  the  case  of  Kansas.  The  first  was  a  case  of  law 
less  vice,  unrebuked;  the  second,  of  just  and  rea 
sonable  demands  tyrannically  resisted.  The  one  was 
a  weak  abandonment  of  power,  the  other  an  oppres 
sive  use  of  it ;  and  each  has  borne  its  appropriate 
fruits.  The  Territories  are  entitled  to  the  fair  and 
honest  exercise  of  the  power  intrusted  to  the  General 
Government, — to  Congress  and  the  President.  It 
was  given  to  them  for  the  good  of  the  Territories,  and 
it  is  their  duty  neither  to  abuse  it  nor  to  abdicate  it. 
We  have  not  been  told  by  this  third  party  how  far 
their  doctrine  of  popular  sovereignty  extends,  or 
whether  it  includes  all  the  interests  and  affairs  of  a 
Territory.  If  it  does,  a  Territory  is  an  independent 
State,  politically  severed  from  the  rest  of  the  nation, 
owing  to  it  no  allegiance,  entitled  to  no  protection, 
and  bound  to  it  by  no  ties  except  such  as  are  volun 
tary.  If  slavery  only  be  included  in  this  new  doc 
trine,  if  on  this  subject  alone  the  will  of  the  people 
of  a  Territory  is  supreme,  and  on  all  others  the  will 
of  Congress  is  supreme,  some  reason  ought  to  be 
given  for  making  slavery  an  exception.  Why  are 
the  unity  and  symmetry  of  the  system  of  Territorial 


82  THE    LAW 

government  that  has  grown  up  under  the  Constitu 
tion  and  become  consolidated  by  usage  and  experi 
ence,  to  be  destroyed  for  the  sake  of  slavery  ?  Is  it 
because  slavery  is  of  so  grave  and  deep  an  interest 
to  the  welfare  of  the  Territories  ?  Why  then  in  other 
matters  less  important  are  they  still  subjected  to  the 
power  of  Congress  ?  Is  it  because  slavery  is  a  "do 
mestic  institution?"  Why  then  should  not  the  will 
of  the  people  control  all  other  domestic  institutions  ? 
Is  it  because  slaves  are  "mere  property?"  Why 
then  not  subject  all  other  property,  land  included,  to 
popular  control  ?  Is  it  because  the  subject  of  slavery 
is  an  exciting  topic  among  the  people  of  the  States, 
— because  parties  and  sections  have  seized  on  it  as  a 
means  of  agitation,  in  and  out  of  Congress,  danger 
ous  to  the  tranquillity  of  the  country,  which  can  be 
checked  only  by  placing  the  subject  beyond  the 
power  of  Congress  and  thus  beyond  the  reach  of 
parties  ?  The  answer  is,  that  Congress  cannot  abdi 
cate  its  authority  on  the  ground  of  expediency.  Its 
duty  is  to  use  its  authority  to  overcome  difficulty  and 
danger,  .not  to  recede  before  them.  If  it  may  give 
up  one  power,  it  may  give  up  any  or  all.  Nor  can 
Congress  delegate  its  power  for  the  same  reason. 
Trust  power  from  its  very  nature  cannot  be  dele 
gated.  It  is  given  to  be  used ;  and  not  to  use  it 


OF   THE   TERRITORIES.  83 

when  occasion  requires,  is  to  fail  in  the  performance 
of  duty.  To  break  down  great  principles,  to  set 
aside  ancient  usage,  to  abandon  legal  authority,  in 
order  to  appease  the  contests  of  parties,  is  too  great 
a  sacrifice.  No  true  peace  can  come  of  it,  only  sup 
pressed  and  adjourned  war.  The  plain  duty  of  Con 
gress  is,  to  maintain  its  constitutional  authority,  and 
to  exert  it  with  such  fairness,  justice,  and  modera 
tion,  that  all  parties  may  be  satisfied.  If  the  time 
has  come  when  this  cannot  be  done,  then  the  time  of 
revolution  has  come  ;  but  the  Government  should  not 
begin  with  what  would  be  the  result  of  a  successful 
revolution,  the  abandonment  of  its  rightful  powers. 

The  South  is  sectional,  and  exacting,  and  revolu 
tionary,  in  its  doctrines  and  plans.  Its  public  men 
openly  avow  that  Southern  interests  are  their  only 
aim  and  guide,  and  that  they  owe  allegiance  to  the 
South  first,  and  to  the  Nation  afterwards,  and  only 
so  far  as  it  serves  and  obeys  the  South.  They 
deny  protection  to  American  industry,  because  its 
benefits,  they  suppose,  would  be  greater  for  the 
North  than  for  their  own  section ;  yet  they  contra 
dict  their  own  doctrines  when,  as  in  the  case  of 
sugar,  the  advantage  of  protection  inures  exclu 
sively  to  themselves.  They  claim  all  the  Territories 


84  THE    LAW 

for  slavery,  without  regard  to  the  rights  or  opinions 
of  their  inhabitants  or  of  the  Northern  people. 
They  demand  the  aid  of  the  Nation,  by  diplomacy 
or  war,  to  acquire  new  and  vast  regions  for  slavery, 
and  failing  in  that,  they  ask,  by  the  repeal  of  the 
neutrality  laws,  the  privilege  of  making  war  them 
selves  for  the  same  purpose,  without  the  sanction 
of  Congress.  Finally,  they  demand  the  repeal  of 
the  law  prohibiting  the  slave-trade.  Negroes  are 
wealth,  and  the  means  of  wealth,  and  wealth  is 
power.  When  these  purposes  shall  be  accomplished, 
then  the  last  demand,  of  which  they  are  the  pre 
liminary  steps,  will  be  made,  and  that  is  for  sepa 
ration  ;  or,  rather,  it  will  follow  as  a  natural 
consequence.  To  build  up  a  great,  Southern,  slave- 
holding  Empire,  inclosing  the  Gulf  of  Mexico,  and 
commanding  the  mouth  of  the  Mississippi,  and 
founded  on  negroes,  cotton,  rice,  sugar,  and  to 
bacco,  on  the  richest  agriculture,  supporting  the 
richest  commerce  in  the  world,  with  all  nations  for 
tributaries,  is  the  ambitious  dream  of  the  South, 
or  of  an  influential  portion  of  it.  Perhaps  the 
realization  of  this  dream  may  lie  in  the  future.  It 
may  be  the  result  toward  which  events  are  irresisti 
bly  tending,  the  effect  of  world-wide  causes,  of 
which  Southern  politicians  and  their  sectional  self- 


OF   THE   TERRITORIES.  85 

ishness  are  the  unconscious  instruments.  But  the 
vision  to  see  this  clearly  is  given  to  few,  and, 
meanwhile,  it  is  for  us  to  do  the  duty  that  lies 
nearest ;  and  that  duty  clearly  is,  to  maintain  the 
Union  so  long  as  it  can  he  maintained,  to  defend 
our  national  existence  whilst  defence  is  possible. 
We  can  do  this  only  hy  preserving  in  full  life  and 
activity  the  Constitution  and  those  principles  of 
political  liberty  which  it  was  made  to  protect  and 
enforce.  When  these  are  destroyed,  all  will  be  lost, 
— wealth,  power,  progress,  peace,  and  happiness. 

The  three  parties  already  mentioned  are  sectional 
in  their  purposes  and  false  in  their  doctrines.  There 
exists,  however,  in  the  sound  opinion  and  patriotic 
feeling  of  the  great  mass  of  the  people,  North  and 
South,  a  party  unknown  to  politicians  or  to  itself, 
scattered  everywhere,  in  counting-houses  and  work 
shops,  in  the  streets  of  cities,  in  rural  villages,  on 
plantations  and  farms;  a  party  that  is  quiet,  re 
tired,  unobtrusive,  defensive  rather  than  aggressive, 
avoiding  political  activity,  hating  the  base  strife  of 
parties  and  demagogues,  too  intent,  indeed,  on  pri 
vate  aims  and  enjoyments,  but  animated  by  loyal 
and  conservative  public  sentiment.  This  party  is  the 
true  people,  the  superior  mind  and  moral  feeling  of 
the  Nation.  It  is  inefficient  because  of  the  very 

8 


86  THE   LAW 

qualities  that  make  it  respectable.  It  does  not  go 
to  town  meetings,  nor  belong  to  political  clubs ;  it 
is  not  represented  at  party  conventions,  nor  is  it 
very  busy  at  the  hustings  ;  preferring  rather  the 
pleasures  of  domestic  life,  and  content  with  the 
active  duties  of  conducting  the  commerce,  the  manu 
factures,  and  the  agriculture  of  the  nation.  It 
seldom  rouses  itself  until  danger  is  imminent.  When 
it  can  be  fully  roused  it  is  all-powerful.  It  is  in 
active  and  unrecognized  now,  in  the  hurly-burly 
of  partisan  politics.  Demagogues  never  dare  to 
address  it.  The  time  has  come  when  this  party 
should  arise  from  its  apathy  and  confidence,  and 
assert  its  rights  and  power.  It  wants  organization, 
self-knowledge,  a  defined  plan  of  principles  and 
purposes,  and  a  representative  man.  Perhaps  it 
may  want  them  too  long. 


OF   THE    TERRITORIES.  87 


POPULAR    SOVEREIGNTY   IN   THE  'TERRITORIES. 

"  In  this  the  antique  and  well-noted  face 
Of  plain  old  form,  is  much  disfigured.'' 

KING  JOHN. 

THE  practical  working  of  a  law,  as  of  a  machine, 
discloses  the  truth  or  error  of  the  principles  on  which 
it  is  made,  even  to  the  unscientific,  who  cannot  ap 
preciate  mere  abstract  reasoning.  Tried  by  this 
test,  the  absurdity  of  the  new  doctrine  of  Popular 
Sovereignty  in  the  Territories,  introduced  by  the 
Kansas  and  Nebraska  Bill,  clearly  demonstrated  at 
the  time  it  was  passed  by  a  priori  argument,  is  now 
made  manifest  by  experience.  Under  the  law  as 
previously  settled  in  opinion  and  practice,  that  the 
Federal  Government  is  the  Government  of  the  Ter 
ritories,  many  States  of  this  Union  lived  their  Ter 
ritorial  life  in  peace  and  tranquillity,  and  at  the  pro 
per  time  took  their  places  in  the  Confederacy,  without 
opposition  or  excitement,  either  within  or  without 
their  borders.  The  Government  of  Congress,  during 
their  period  of  probation,  sufficed  for  their  wants, 
and  their  admission  as  States  was  efiected  by  the 


88  THE    LAW 

same  authority,  without  complaint  on  their  part,  and 
often  so  quietly  as  scarcely  to  attract  the  notice  of 
the  Nation.  Whether  the  people  were  "  at  liberty  to 
form  and  regulate  their  own  domestic  institutions  in 
their  own  way"  or  not,  it  is  evident  they  got  such  as 
they  liked,  for  they  have  been  satisfied. 

The  first  case  to  which  the  new  doctrine  has  been 
applied,  and  for  which,  indeed,  it  was  specially  in 
tended,  is  the  Territory  of  Kansas,  and  it  has  pro 
duced  a  result  in  direct  contradiction  to  the  vaunted 
principle  which  it  professes  to  establish,  and  has 
created  such  an  excitement  in  Kansas  and  through 
out  the  country,  as  to  threaten,  the  President  him 
self  says,  the  stability  of  the  Union.  The  people, 
so  far  from  being  allowed  to  form  their  own  institu 
tions  in  their  own  way,  have  been  subjected,  from 
first  to  last,  to  a  government  against  which  they 
have  protested,  even  to  the  point  of  forcible  resist 
ance.  A  legislature  and  laws  were  imposed  on  them 
by  a  foreign  power ;  a  Constitution  has  been  framed 
for  them  by  an  insignificant  minority,  and,  at  this 
moment,  the  President  and  his  party  in  Congress  are 
attempting  to  force  upon  them  that  hated  Constitu 
tion,  in  direct  opposition  to  their  known  wishes  and 
earnest  remonstrance.  This  clear  injustice;  this 
monstrous  inconsistency  between  profession  and 


OF   THE   TERRITORIES.  89 

practice;  this  gross  violation  of  the  chief  principle 
of  American  and  Republican  Government,  has  re 
volted  the  moral  sentiment  and  aroused  the  indigna 
tion  of  the  country,  and  given  to  the  affairs  of 
Kansas  an  interest  and  importance  so  great  that 
they  absorb  the  attention  of  Congress  and  the  Nation, 
and  will  continue  to  absorb  it  until  right  be  done 
and  wrong  redressed.  But  for  these  causes  the  very 
existence  of  Kansas  would  scarcely  be  known  to  the 
majority  of  the  people,  and  its  admission  or  rejec 
tion  as  a  State  would  have  passed,  without  attract 
ing  more  attention  than  the  routine  business  of  the 
legislature.  It  is  clear  the  Kansas  and  Nebraska 
Bill  does  not  work  well.  Its  practical  result  is,  not 
liberty  but  oppression ;  not  the  peaceful  reign  of 
justice  and  law,  but  the  rule  of  force  and  fraud, 
assuming  the  forms  of  law ;  not  the  sovereign  will 
of  the  people,  choosing  and  regulating  their  own 
institutions  in  their  own  way,  but  the  tyrannical 
sway  of  a  minority,  and  of  a  very  small  minority, 
imposing,  with  the  aid  of  the  President,  upon  the 
people,  institutions  which  they  abhor,  and  against 
which  they  have  protested  by  every  means  in  their 
power ;  by  voting  and  by  refusing  to  vote ;  by  argu 
ment  and  by  entreaty ;  by  appeals  to  the  justice  of 
Congress,  and  by  appeals  to  the  sympathy  and  pa- 

8* 


90  THE    LAW 

trio  tic  feeling  of  the  whole  country.  They  have  got 
nothing  in  reply  from  the  Government  but  insults, 
threats,  and  bayonets. 

The  cause  of  this  is  plain  enough.  The  Kansas 
and  Nebraska  Bill  is  a  snare,  a  mockery,  and  a  lie, 
from  end  to  end.  Its  ostentatiously  paraded  prin 
ciple,  the  sovereignty  of  the  people,  it  does  not 
carry  out,  but  defeats.  It  emancipates  a  Territory 
from  the  government  of  Congress,  and  declares  that 
its  people  shall  be  "perfectly  free  to  form  and 
regulate  their  domestic  institutions  in  their  own 
way."  But  they  can  do  this  only  by  means  of  laws, 
and  what  control  can  they  exert  over  the  laws,  un 
less  they  have  also  control  over  the  powers  by  means 
of  which  laws  are  made,  construed,  and  enforced  ? 
How  can  they  "  form  and  regulate  their  domestic 
institutions,"  unless  their  political  institutions  are 
the  representatives  of  their  opinions  and  their  will  ? 
For  this  the  law  does  not  provide.  The  executive 
power  is  one  of  these  political  institutions,  yet  the 
President  appoints  their  Governor ;  the  judiciary  is 
another,  yet  the  President  appoints  their  Judge  ;  the 
ministerial  officers  by  which  the  decrees  of  courts 
are  enforced  is  a  third,  yet  the  President  appoints 
their  Marshal.  What  is  left  to  the  people  ?  Only 
the  Legislature,  upon  whose  proceedings  the  Gover- 


OF   THE   TERRITORIES.  91 

nor  has  a  veto,  and  whose  laws  are  to  be  applied  by 
a  Court  and  executed  by  a  Marshal  appointed  by  a 
foreign  power,  and  responsible  only  to  that  power. 
Not  merely,  therefore,  is  there  erected  in  the  Terri 
tory  legal  authority  over  which  the  people  have  no 
control,  but  the  whole  weight  of  official  station  and 
influence  comes  to  them  from  abroad.  How  absurd, 
then,  to  talk  about  their  sovereignty,  when  the  in 
stitutions  by  which  alone  that  sovereignty  can  be 
exercised,  are  in  the  hands  of  another  power,  also 
beyond  their  control.  Suppose  that,  in  the  State  of 
Pennsylvania,  the  President  appointed  our  Gover 
nor,  our  Judges,  and  our  Sheriffs.  Would  we  be  a 
sovereign  and  independent  State,  free  to  make  our 
own  laws  and  regulate  our  own  affairs,  or  the  sub 
jects  of  the  General  Government, — nay,  of  the  Pre 
sident  alone  ?  Yet  the  people  of  Pennsylvania 
have  what  those  of  a  Territory  have  not,— a  voice 
in  the  election  of  a  President. 

The  Kansas  and  Nebraska  Bill  is  therefore  a  con 
tradiction  and  a  fraud.  It  overturns  constitutional 
law  and  usage,  coeval  with  the  foundation  of  our 
Government,  and  has  not  the  poor  merit  of  being 
consistent  with  itself.  The  Territories  are  with 
drawn  from  the  power  of  Congress,  they  are  sub 
jected  to  the  power  of  the  President.  In  Congress 


92  THE    LAW 

there  are  always  two  parties,  and  there  is  public 
debate.  Over  its  action  the  opinion  and  sentiment 
of  the  country  have  immediate,  hourly  influence, 
and  these  are  so  many  securities  against  unjust  lawrs. 
The  President  represents,  practically,  one  party. 
His  counsels  are  or  may  be  secret,  in  cases  where 
he  is  independent  of  Congress.  To  gain  a  partisan 
or  sectional  object,  he  may  be  tempted  to  do  things 
he  would  not  venture  to  submit  to  the  open  discus 
sion  and  free  vote  of  the  Legislature,  and  may 
therefore  exert  the  whole  force  of  his  authority  and 
influence  in  opposition  to  the  wishes  of  the  people 
of  a  Territory,  who  are  subjected  to  his  power  with 
out  appeal,  and  are  thus  living,  in  fact,  not  under 
a  republic,  but  a  monarchy,  and  a  monarch,  too, 
not  of  their  own  choice.  Better,  surely,  for  them, 
the  Government  of  Congress  and  the  President, 
provided  by  the  Constitution,  with  the  check  and 
balance  of  power  this  combination  was  intended  to 
create,  affording  thus  to  the  people  the  security  of  a 
Legislature  before  which  their  complaints  could  be 
heard,  their  cause  argued,  and  where,  should  redress 
be  denied,  the  justice  of  their  demands  could  be 
made  manifest,  and  bring  to  their  aid  the  public 
opinion  and  ballot-boxes  of  the  nation,  the  ultimate 
reliance  of  all,  whether  States  or  Territories. 


OF   THE   TERRITORIES.  93 

The  troubles  in  Kansas  have  been  the  result  of 
this  contradiction  between  the  promise  and  perform 
ance  of  the  Kansas  and  Nebraska  Bill,  which  gives 
to  the  people  only  a  Legislature  subjected  to  a  power 
irresponsible  to  them ;  offers  them  the  privilege  of 
managing  their  own  affairs,  yet  imposes  on  them  an 
authority  large  enough  to  interfere  in  all  their  af 
fairs  ;  an  authority  above  their  reach,  liable  to  be 
directed  by  interests  and  designs  foreign  to  them, 
and  wielded  by  persons  sent  to  them  from  abroad. 
Should  the  motives  and  plans  of  this  foreign  govern 
ment  harmonize  with  the  wishes  of  the  people,  the 
new  law  would  work  smoothly  enough  so  long  as  the 
harmony  lasted.  But  should  there  be  no  harmony, 
on  the  contrary  discord,  then  it  cannot  work  well. 

"  When  two  authorities  are  up, 
Neither  supreme,  how  soon  confusion 
May  enter  twixt  the  gap  of  both,  and  take 
The  one  by  the  other." 

This  is  just  what  has  happened  in  Kansas.  Con 
fusion,  leagued  with  one  authority,  has  taken  the 
other  and  led  it  captive.  Thus  the  inconsistency  in 
the  law  has  been  reflected  and  represented  by  the 
disorder  which  lias  made  Kansas  a  scene  of  agita 
tion  from  the  first  moment  of  its  existence.  False- 


94  THE    LAW 

hood  of  principle  must  always  be  followed  by  obstacles 
and  difficulties  in  practice,  because  facts  are  governed 
by  eternal  truth,  and  from  their  nature  obey  truth 
and  resist  falsehood. 

From  the  first,  a  large  and  constantly  increasing 
majority  of  the  people  of  Kansas  have  been  opposed 
to  slavery.  The  President  has  been,  during  all  that 
time,  desirous,  not  merely  to  protect  slavery  where  it 
exists,  but  to  extend  it.  The  people  of  Kansas  de 
sired  to  see  their  land  cultivated  by  free  labor,  to 
make  their  healthful  and  fertile  country  the  home  of 
the  Saxon  race,  their  own  race,  which  they  prefer  to 
the  African.  The  President  was  determined  that  it 
should  be  cultivated  by  slaves,  and  that  the  Negro 
also  should  make  it  his  home.  Hence  arose,  from 
the  beginning,  a  contest  between  the  President  on 
one  side,  and  the  people  of  Kansas  on  the  other. 
The  forces  of  the  President  were,  the  Governor,  the 
Judge,  and  the  Marshal,  their  subordinates  and  offi 
cial  influence.  Had  the  President  really  wished  to 
carry  out  the  Kansas  and  Nebraska  Bill,  according 
to  its  spirit  and  promise,  by  giving  effect  to  the  will 
of  the  people,  he  would  have  appointed  to  these  of 
fices  men  opposed  to  slavery,  because  the  great  ma 
jority  of  the  people  were  opposed  ^o  slavery.  But 
he  did  not  do  this.  He  selected  pro-slavery  men, 


OF   THE   TERRITORIES.  95 

and  sent  them  to  the  scene  of  action.  The  people 
ought  to  have  had  on  their  side,  even  according  to 
the  lame  and  inadequate  provision  of  the  new  law, 
the  Legislature.  But  unluckily  for  them,  at  the  very 
start,  they  lost  even  that  defence.  At  the  first  elec 
tion,  the  polls  were  invaded  by  armed  bands  from  the 
neighboring  slave  State,  who  came  with  baggage  wa 
gons  and  artillery,  the  equipment  and  drill  of  military 
array.  They  came  suddenly  and  unexpectedly,  over 
powered  the  settlers,  usurped  the  ballot-box,  put  in 
their  own  votes,  and  triumphantly  elected  the  candi 
dates  of  the  President  and  the  South.  They  came 
not  to  reside,  but  to  vote  and  return  to  their  homes 
in  Missouri.  It  was  officially  proved  before  a  com 
mittee  of  Congress  sent  to  investigate  the  facts  on 
the  spot,  that  at  this  election  only  one-fifth  of  the 
votes  were  legal  and  given  by  actual  settlers.  The 
rest  were  all  Missouri  votes.  The  Governor  of  Kan 
sas  did  not  abrogate  the  Legislature  thus  elected, 
which  it  was  his  duty  to  do,  and  which  he  might  le 
gally  have  done,-  for  fraud  and  duress  vitiate  all 
transactions ;  but  on  the  contrary,  he  recognized, 
approved,  and  used  it,  and  so  did  the  President.  It 
is  remarkable,  also,  that  the  President,  in  his  late 
message  sent  with  the  Lecompton  Constitution  to 
Congress,  makes  no  allusion  whatever  to  these  no- 


96  THE    LAW 

torious  facts,  though  they  were  in  evidence  before 
him,  and  form,  indeed,  part  of  the  record  in  the 
case. 

Behold,  then,  the  people  of  Kansas  deprived  of 
all  the  means  by  which  it  was  possible  for  them  "  to 
choose  and  regulate  their  own  institutions,  in  their 
own  way."  The  Executive,  the  Judiciary,  and  the 
Legislature  were  all  in  the  hands  of  their  enemies. 
They  found  themselves  fettered,  hand  and  foot.  The 
Governor,  the  Judge,  the  Marshal,  were  the  agents 
of  the  President  and  the  South.  The  Legislature, 
which  even  the  new  doctrines  of  constitutional  law 
introduced  by  the  South,  meant  to  be  the  represen 
tative  of  their  will,  was-  elected  not  by  them,  but  by 
the  people  of  Missouri,  and  represented  the  opinions 
of  that  people,  as  was  speedily  shown.  At  its  first 
session,  it  proceeded  to  pass  laws  for  the  purpose  of 
forcing  slavery  into  the  Territory ;  laws  so  monstrous, 
so  iniquitous,  so  subversive  of  every  principle  of 
liberty  and  justice,  that  they  drew  forth  indignant 
rebuke  even  from  Southern  Senators  in  Congress. 
Laws  made  for  Kansas  by  Missouri.  It  was  the 
duty  of  the  Governor  to  veto  those  laws.  He  had 
the  power,  but  he  did  not  exert  it;  on  the  contrary, 
they  were  approved  by  the  Governor,  and  received 
the  sanction  and  support  of  the  President,  who  nomi- 


OF   THE   TERRITORIES.  97 

nated  the  Governor.  To  the  infamous  character  of 
these  laws  the  President  has  made  no  allusion  in  his 
late  Message.  In  this  fashion  was  it  that  the  people 
were  left  perfectly  free  to  choose  their  own  institu 
tions  and  regulate  their  affairs  in  their  own  way. 

They  would  have  been  false  to  all  the  traditions 
and  sentiments  of  their  race  and  country,  had  they 
remained  content  and  submissive  under  such  thral 
dom.  But  they  were  far  from  being  content,  and 
they  displayed  a  spirit  not  unworthy  their  "  blood 
fetched  from  fathers  of  war-proof,"  and  showed  "the 
mettle  of  their  pasture."  They  denounced  the 
wicked  fraud  that  had  been  practised  upon  them,  the 
brutal  violence  to  which  they  had  been  subjected. 
They  remonstrated,  they  expressed  their  indignation 
in  public  meetings,  through  the  press,  in  some  cases 
by  forcible  resistance,  and  at  last  by  calling  a  Con 
vention  at  Topeka,  that  should  really  represent  their 
wishes  and  form  a  Constitution  for  their  future 
government. 

This  Convention  certainly  wanted  the  forms  of 
law,  but  only  the  forms.  In  substance,  in  motive,  in 
spirit  and  intention,  it  was  American  and  Republican, 
whilst  the  Territoral  Legislature  was  destitute  of  all 
these  merits,  and  had  nothing  but  form  to  recom 
mend  it.  The  people  had  been  cheated  out  of  their 


98  THE    LAW 

Legislature,  promised  them  even  by  the  new  law. 
Was  it  extraordinary  that  they  should  make,  even 
an  irregular  effort,  to  get  a  Legislature  that  should 
represent,  not  the  people  of  another  State,  but  them 
selves  ?  They  had  been  told,  by  that  same  law,  that 
they  should  be  "perfectly  free  to  form  and  regulate 
their  domestic  institutions  in  their  own  way."  They 
adopted  this  "way"  of  choosing  the  Topeka  Conven 
tion  and  the  Constitution  made  by  it  and  free  labor,  as 
their  "institutions,"  because  the  Missourians  and  the 
President  had  stopped  up  the  regular  and  legal  way, 
which  they  would  have  preferred.  Their  conduct 
was  not  technically  correct,  but  being  a  rude  people, 
in  a  wilderness,  they  were  probably  not  well  versed 
in  legal  forms,  and  may  be  excused  for  mistaking 
the  Kansas  and  Nebraska  Bill  for  constitutional  law. 
Their  betters  have  made  a  similar  blunder.  Russian 
or  Austrian  despotism  might  censure  them  harshly, 
perhaps,  but  surely  the  instincts  and  feelings,  if  not 
the  judgment,  of  the  American  people  will  pardon 
their  error.  In  truth  they  displayed  in  this  very 
act,  the  combined  love  of  liberty  and  law,  which,  in 
all  ages,  has  distinguished  their  race :  their  love  of 
liberty,  by  resisting  oppression ;  their  love  of  law, 
by  resisting  it,  with  order,  deliberation,  and  regular 
ity.  The  President  has  described  the  Topeka  Con- 


OF   THE   TERRITORIES.  99 

vention  as  revolutionary.  Perhaps  it  was  so,  and  a 
government  that  "decrees  iniquity  by  law,"  must 
expect  a  revolution.  The  first  Congress  that  set  in 
this  country  was  revolutionary,  and  it  grew  out  of 
the  very  same  cause  that  created  the  Topeka  Con 
vention  ;  an  attempt  to  enforce  obedience  without 
representation.  The  President  could  have  prevented 
this  Convention  by  doing  justice  to  the  people ;  but 
instead  of  this,  he  joined  the  Missourians.  He  even 
enrolled  them  as  a  posse  comitatus  to  enforce  the 
laws  of  the  Territorial  Legislature,  arming  their 
ferocity  and  excited  passions  with  his  own  legal 
authority.  The  President,  in  his  late  Message,  has 
condemned  in  strong  language,  the  Topeka  Conven 
tion,  its  acts  and  the  people  who  supported  it,  but  he 
has  forgotten  to  mention  any  of  the  circumstances 
that  go  far  to  palliate  their  conduct,  if  indeed  they 
do  not  wholly  excuse  it. 

At  this  point  of  their  history,  the  people  of 
Kansas  were  made  acquainted  with  another  ally 
of  the  President, — the  Federal  army.  They  were 
told  that  the  Legislature  elected  by  Missouri  votes 
was  a  valid  Legislature,  because  according  to  legal 
form.  That  its  laws  must  be  obeyed.  That  the 
President  could  not  go  behind  the  legal  form  of  that 
Legislature  and  those  laws  to  inquire  into  their 


100  THE    LAW 

origin,  but  must  sustain  the  one  and  execute  the 
other,  as  he  found  them.  Accordingly  the  Legisla 
ture  and  its  laws,  abhorred  by  the  people,  were 
forced  upon  them  by  the  troops  of  the  United 
States, — of  that  Government  which  demanded  obe 
dience  from  them,  but  refused  them  protection. 

What  then  could  the  people  do  ?  If  they  ap 
pealed  to  the  President,  he  was  the  agent  of  their 
enemies,  and  pointed  to  the  law  and  his  bayonets. 
If  they  appealed  to  Congress,  they  found  its  doors 
barred  and  bolted  against  them  by  the  Kansas  and 
Nebraska  Bill.  Congress  had  no  power  to  meddle 
in  the  matter,  they  were  told,  because  they  were  at 
perfect  liberty  to  manage  their  affairs  in  their  own 
way.  So  far  as  Congress  was  concerned,  they  were 
an  independent  people.  Congress  did  not  approve, 
indeed,  of  the  border  ruffians  or  the  Territorial 
laws,  neither  did  it  of  Austrian  tyranny  in  Italy ; 
but  what  of  that  ?  It  had  no  right  to  interfere  in 
either  case.  They  must  help  themselves,  and  get 
out  of  the  scrape  as  best  they  could ;  only,  they 
must  obey  the  President. 

The  people  of  Kansas  thus  found  themselves 
caught  in  a  trap ;  wound  round  and  entangled  in 
the  meshes  of  a  net  of  sophistry  and  falsehood, 
woven  for  them  by  the  cunning  craft  of  Southern 


OF    THE    TERRITORIES.  101 

statesmanship.  They  were  subjected  wholly  to  au 
thority  either  foreign  or  usurped,  or  both,  over 
which  they  had  not  the  slightest  control.  All  the 
government  they  had,  came  to  them  either  from 
Washington  or  Missouri,  was  neither  derived  from 
them  nor  responsible  to  them,  yet,  so  ingeniously 
had  it  been  contrived,  that,  though  to  submit  to  it 
was  base  and  slavish,  to  resist  it  would  be  treason 
and  civil  war.  In  this  difficult  emergency  they 
adopted  a  line  of  conduct  so  temperate  and  pru 
dent,  and,  at  the  same  time,  so  honorable  and  firm, 
that  it  should  excite  the  sympathy  and  admiration 
of  all  lovers  of  conservative  liberty,  and  deserves  a 
place  in  the  annals  of  the  country.  They  deter 
mined  to  be  true  at  once  to  the  Government  which 
had  cast  them  off  and  to  themselves.  They  sub 
mitted  to  unjust  power,  clothed  in  the  forms  of  law, 
out  of  deference  to  the  law ;  they  refused,  by  any 
voluntary  act,  to  recognize  or  ratify  that  power. 
They  gave  to  Caesar  what  was  due  to  Caesar,  and 
no  more  They  kept  to  themselves  what  was  due 
to  their  own  conscience, — the  right  of  protest,  the 
right  of  refusing  to  say  that  a  lie  was  the  truth. 
The  new  Constitutional  law  enacted  by  Congress 
had  left  them  and  could  not  deprive  them  of  at 
least  one  privilege, — the  privilege  of  not  voting. 

9* 


102  THE    LAW 

Neither  the  South  nor  the  President,  their  subtle 
machinations  or  their  obedient  bayonets,  could 
oblige  them  to  degrade  the  ballot-box.  If  they 
could  not  resist  tyranny,  they  could  at  least  refuse 
to  sanction  it,  to  fasten  the  yoke  on  their  own 
necks,  to  kiss  the  rod  of  their  oppressors.  They 
resolved,  therefore,  that  they  would  not  vote  at 
any  election  under  the  Territorial  Legislature,  be 
cause,  by  voting,  they  would  impliedly  acknowledge 
its  legal  authority.  They  have  consistently  ad 
hered  to  that  resolution  through  all  temptations 
and  trials,  in  defiance  of  menace,  entreaty,  and 
vituperation.  Whenever  they  could  vote  without 
compromising  this  honorable  position,  they  have 
voted,  and  thus  demonstrated  the  insignificance  of 
the  minority  which,  aided  by  the  President  and 
Missouri,  has  ruled  over  them.  They  might,  on 
one  occasion  at  least,  have  obtained  a  victory  over 
this  minority,  but  they  abstained,  preferring  truth 
to  expediency.  The  question  of  slavery  soon 
ceased  to  interest  them.  Nature  and  events  had 
decided  that  question  at  a  very  early  period  of 
their  history,  and  it  had  become  merged,  as  soon 
as  the  Territorial  Legislature  assembled,  in  a  far 
deeper  and  graver  question,  involving  the  great 
principles  of  law  and  liberty  and  civil  rights, 


OF   THE   TERRITORIES.  103 

X 

which  the  Constitution  of  this  country  was  made 
to  protect.  They  knew  well  that  this  question 
would  stir  the  mind  and  heart  of  the  Nation  from 
their  depths ;  that  the  honest  feelings  of  the  people 
would  rise  and  swell  responsive  to  their  mute  ap 
peals  ;  that  the  long  roll  of  those  deep  waters 
w^ould  surely  float  them  off  from  their  barren  rock 
of  desolation ;  and  they  determined  to  wait  for  it, 
as  the  stranded  mariner  waits  for  the  returning 
tide.  Events  are  showing  that  they  wrere  not  mis 
taken.  The  President  has  denounced  them  as  dis 
affected  rebels  and  as  traitors  to  their  country. 
History  will  tell  a  different  story. 

They  adhered  to  their  resolution  to  vote  only 
when  they  could  do  so  without  giving  their  sanction 
to  a  fraud  and  a  lie.  The  Territorial  Legislature 
appointed  an  election  for  a  Convention  to  frame  a 
Constitution  for  the  future  State.  They  could 
easily  have  carried  that  election,  but  they  refused 
to  vote,  because  they  would  thus  have  recognized 
the  spurious  and  hated  Legislature.  The  Conven 
tion  was  thus  the  choice  of  a  small  minority.  At 
this  stage  of  the  business,  the  President,  moved  by  the 
ominous  and  extraordinary  spectacle  of  a  majority 
of  the  people  standing  aloof  as  silent  spectators  at 
an  election,  came  forward  with  a  proposition,  which 


104  THE    LAW 

was  eagerly  hailed  as  a  harbinger  of  peace.  He 
promised  that  whatever  Constitution  the  Convention 
made,  should,  before  being  presented  to  Congress, 
be  first  submitted  to  the  people,  to  be  accepted  or  re 
jected  by  them.  The  people  then  consented  to  vote, 
because  they  could,  by  rejecting  the  Constitution, 
get  rid  at  once  and  forever  of  the  Convention  and 
its  work,  and  the  chief  work  that  the  Territorial 
Legislature  was  intended  to  accomplish.  The  Con 
stitution  was  made,  but  it  was  not  submitted  to  the 
people.  It  was  offered  to  them  in  such  a  way  that 
no  man  could  vote  against  it.  Two  tickets  were 
formed :  one  was  "  For  the  Constitution  with  Sla 
very;"  the  other,  "For  the  Constitution  without 
Slavery;"  in  either  case,  the  Constitution.  What 
the  people  of  Kansas  desired  and  expected  was,  an 
opportunity  to  condemn  and  spurn  from  them  any 
Constitution  made  by  a  Convention  that  was  the 
creature  of  a  usurping  and  tyrannical  Legislature, 
elected,  not  by  them,  but  by  Missourians.  This 
opportunity  they  were  promised  by  the  President, 
and  by  the  Governor  appointed  by  the  President. 
They  cared  nothing  about  slavery,  which  they  wrell 
knew  could  never  trouble  them.  What  they  did 
care  about  was,  to  get  rid  of  a  tyrannical  Govern 
ment  which  had  been  forced  on  them  by  fraud 


OF   THE   TERRITORIES.  105 

and  violence.  But  even  the  question  of  slavery, 
professedly  submitted,  was  not  submitted  at  all. 
By  a  transparent  trick,  inconceivably  paltry  and 
base,  it  was  so  contrived  that  however  they  might 
vote,  they  must  still  sanction  slavery  in  the  Terri 
tory.  Is  it  surprising  that  the  people  of  Kansas 
refused  to  vote  at  such  an  election  ?  That  they  felt 
they  had  been  trifled  with,  cajoled,  and  cheated,  by 
the  President  and  by  the  Convention  ?  When,  sub 
sequently,  this  same  Constitution  was  really  sub 
mitted  to  their  votes  by  a  Legislature  elected  by 
themselves,  they  gave  sufficient  proof  of  their  senti 
ments  in  relation  to  it.  They  rejected  it  by  more 
than  ten  thousand  majority. 

This  Constitution  has  been  presented  to  Congress 
by  the  President,  notwithstanding  his  promise.  He 
has  sent  it  with  a  message  urging  Congress  to 
accept  it.  His  chief  argument  is,  that  immediately 
after  the  admission  of  Kansas  as  a  State,  with  this 
Constitution,  the  people  can  abolish  it,  notwith 
standing  the  provision  it  contains,  that  it  shall  not 
be  altered  for  seven  years.  This  doctrine  is  a 
thousand  times  more  revolutionary  than  the  Topeka 
Convention.  It  will  be  good  news  for  the  Aboli 
tionists,  who  have  long  cherished  a  wild  scheme  of 
"  amending,"  as  they  call  it,  the  Constitution  of  the 


106  THE    LAW 

Union  on  the  subject  of  slavery.  They  have  heard, 
no  doubt  with  joy,  that  this  can  be  done,  at  any 
time,  by  a  mere  majority  of  Congress-  and  the 
people,  instead  of  requiring,  as  that  instrument 
provides,  two-thirds  of  Congress  or  of  the  States 
to  propose  amendments,  and  a  vote  of  three-fourths 
of  the  States  to  ratify  the  amendments  when  pro 
posed.  The  principle  announced  by  the  President 
is  precisely  that  on  which  Dorr,  of  Rhode  Island, 
assisted  by  a  rabble  rout  of  followers,  some  years 
ago,  undertook  to  overturn  the  government  of  a 
populous  and  nourishing  State,  under  which  its 
people  had  lived  in  peace  and  prosperity  for  more 
than  a  century.  On  the  plea  of  an  alleged  majority 
(which  turned  out  to  have  been  fabricated),  and  an 
election  unauthorized  by  law,  he  had  the  audacity 
to  demand  of  the  public  officers  to  abdicate  their 
power,  and  to  deliver  to  him  and  his  Jacobin  club 
the  treasury  and  the  archives  of  the  commonwealth. 
His  doctrine  is  the  same  as  that  of  French  Red 
Republicans  and  English  Chartists,  and  once  esta 
blished,  would  place  every  Constitution  in  the  coun 
try,  State  and  Federal,  at  the  mercy  of  demagogues, 
mobs,  and  adepts  in  ballot-box  manipulation.  The 
President  has  given  to  the  radical  and  dangerous 
principles  of  Dorr,  the  sanction  of  official  authority. 


OF   THE   TERRITORIES.  107 

He  has  proclaimed  them  as  law  in  a  formal  and 
solemn  State  paper.  Conservative  men  have  not 
been  pleased  to  find  them  in  such  a  place,  or  revived 
at  all.  Fortunately,  however,  the  dictum  of  the 
President  has  not  yet  become  a  decision  of  the 
Supreme  Court,  though  after  the  opinion  given  in 
the  case  of  Dred  Scott,  there  is  no  knowing  how 
soon  it  may  assume  that  shape.  The  President 
advises  Congress  to  accept  the  Lecompton  Consti 
tution  on  the  ground  of  expediency.  To  impose  it 
on  the  people  of  Kansas,  against  their  wishes,  will, 
he  thinks,  restore  peace  to  that  distracted  Territory 
and  to  the  whole  country.  But  it  is  dangerous,  as 
well  as  morally  wrong,  to  sacrifice  the  true  and  the 
just  for  the  sake  of  the  expedient.  Perhaps  the 
President  may  be  mistaken.  The  same  party  in 
Kansas  and  out  of  Kansas,  who  made  this  Constitu 
tion,  will  still  exist  to  support  it  after  it  is  accepted. 
To  maintain  it  would  secure  two  Senators  and  a 
triumph  for  the  South  and  the  Democratic  party. 
They  would  not  be  likely  to  relinquish  any  legal 
advantage.  They  would  claim,  and  have  a  right  to 
claim,  that  the  Constitution  be  obeyed ;  that  it  be 
altered  or  abolished  only  in  the  way  provided  by 
itself.  They  would  demand,  also,  from  the  Presi 
dent,  and  with  legal  right,  assistance  to  compel 


108  THE    LAW 

submission  to  the  Constitution ;  and  thus  would  the 
old  controversy  be  renewed.  Nor  would  the  agita 
tion  which  this  subject  causes  throughout  the  coun 
try,  cease.  It  would  still  be  a  sectional  struggle. 
The  parties  would  be  the  same,  the  principles  the 
same ;  and  it  is  for  the  sake  of  these  principles,  not 
for  the  sake  of  Kansas,  that  the  people  are  excited. 
Kansas  is  not  as  yet  of  much  material  value  in  the 
country.  Its  population  is  small,  its  business  is 
small.  It  does  not  contribute  many  dollars  to 
enrich  our  trade.  Not  one  in  a  thousand  of  the 
people  cares  much  whether  it  be  a  slave  State  or 
a  free  State  ;  but  millions  do  care,  most  deeply, 
whether  slavery  is  to  be  forced  upon  it  against  the 
wishes  of  its  people ;  whether  the  Constitution  of 
their  country  is  to  be  repealed  for  the  sake  of  sla 
very  ;  whether  their  Government  is  to  be  used  as  an 
instrument  to  accomplish  the  schemes  of  sectional 
ambition  in  violation  of  the  obligations  of  truth  and 
justice.  It  is  creditable  to  the  people  that  they  can 
be  thus  moved,  and  by  such  questions — by  the  ideal 
and  the  moral,  the  distant  and  the  future ;  and  all 
the  more  creditable,  because  the  occasion  is  insignifi 
cant  ;  for  this  proves  that  their  feelings  are  excited 
only  by  the  great  principles  involved.  Whenever 
the  contest  is  between  right  and  wrong,  these  give 


OF   THE  TERRITORIES.  109 

importance  to  trifles,  invest  things  valueless  in  them 
selves  with  a  higher  and  nobler  interest  than  any 
value  could  impart,  and  shed  a  lustre  on  any  scene 
of  action,  however  remote  or  humble. 

"  Rightly  to  be  great, 
Is  not  to  stir  without  great  argument ; 
But  greatly  to  find  quarrel  in  a  straw, 
When  honor's  at  the  stake." 

It  is  worthy  of  remark,  that  the  President,  in 
offering  to  Congress  the  Lecompton  Constitution, 
confines  his  censure  to  those  who  opposed  it.  All 
the  crimes  to  which  that  instrument  owes  its  ex 
istence,  he  passes  by  without  condemnation.  Yet 
they  are  of  a  character  peculiarly  worthy  the  notice 
of  a  Chief  Magistrate,  for  they  affect  the  purity  and 
value  of  the  elective  franchise.  Their  tendency  is 
to  dethrone  the  ballot-box,  to  make  our  elections  a 
mockery,  to  substitute  for  the  will  of  the  people  the 
decisions  of  party  cabals  and  the  designs  of  party 
leaders.  If  by  false  returns,  fictitious  votes,  and 
the  arbitrary  arithmetic  of  officers  of  elections,  the 
ballot-box  be  made  to  say  one  thing,  whilst  the  peo 
ple  mean  another,  the  sooner  that  ingenious  little 
machine  is  abolished  the  better.  The  English  viva 
voce  plan,  or  mere  virtual  representation,  without 

10 


110  THE    LAW 

any  voting  at  all,  would  be  safer  and  far  more 
honest.  Yet  by  these  fraudulent  arts  the  politics 
of  Kansas  have  been  managed,  from  the  Missouri 
election  of  the  first  Territorial  Legislature,  to  the 
vote  on  the  Lecompton  Constitution.  All  this  was 
in  evidence  before  the  President.  The  very  men  he 
successively  appointed  to  carry  out  his  policy  in  Kan 
sas,  told  him  of  it,  and  proclaimed  it  to  the  world. 
Nevertheless,  the  Territorial  Legislature  and  its 
laws,  the  Lecompton  Constitution  and  the  vote  by 
which  it  was  passed,  are  all  upheld  by  the  Presi 
dent,  sanctioned,  approved,  and  presented  to  Con 
gress  for  ratification.  Violence  and  fraud  and  ballot- 
box  gambling  are  thus  justified  by  the  highest  au 
thority  in  the  nation.  It  is  an  evil  thing  for  any 
one  to  withhold  praise  or  blame  where  either  is 
due,  because  it  is  unjust,  and  because  these  are 
powerful  influences  to  repress  crime  and  encou 
rage  virtue.  Still  worse  is  it  to  give  to  crime  that 
approval  and  support  which  belong  of  right  only  to 
virtue;  and  this  should  more  especially  be  avoided 
by  those  whose  high  station  adds  weight  and  impor 
tance  to  their  opinion,  more  sometimes  than  it  de 
serves.  Therefore  a  wise  king,  who  well  understood 
the  duty  and  responsibility  of  his  office,  has  written : 
"  He  that  saith  unto  the  wicked,  Thou  art  right- 


OF   THE   TERRITORIES.  Ill 

eous ;  him  shall  the  people  curse,  nations  shall  abhor 
him." 

Nevertheless,  one  argument  used  by  the  President 
is  conclusive.  He  says  that  he  is  in  favor  of  admit 
ting  Kansas  under  the  Lecompton  Constitution,  be 
cause  "  This  will  carry  out  the  great  principle  of 
non-intervention,  recognized  and  sanctioned  by  the 
organic  act,  which  declares  in  express  language  in 
favor  of  the  4  non-intervention  of  Congress  with  sla 
very  in  the  Territories,'  leaving  the  people  '  perfectly 
free  to  form  and  regulate  their  domestic  institutions 
in  their  own  way,  subject  only  to  the  Constitution  of 
the  United  States.'  "  This  is  true.  If  the  Kansas 
and  Nebraska  Act  be  the  law  of  the  land — and  such 
it  is  till  repealed,  or  declared  unconstitutional  by  the 
Supreme  Court — Congress  is  bound  to  accept  the 
Lecompton  Constitution.  That  act  places  the  Ter 
ritories  beyond  the  power  of  Congress,  and  wholly 
under  the  control  of  the  local  Legislature  and  the 
President.  Kansas  presents  herself  with  a  Consti 
tution,  which,  the  President  declares,  was  made  ac 
cording  to  law,  by  the  regularly  constituted  authori 
ties  of  the  Territory.  The  Convention  was  legally 
elected,  he  says ;  the  Territorial  Legislature  was  a 
genuine  and  valid  Legislature.  What  right  has  Con 
gress  then,  which  has  abdicated  all  authority  over 


112  THE    LAW 

the  Territories,  to  disregard,  to  discredit,  these  offi 
cial  declarations.?  What  the  President  says,  more 
over,  is  true.  The  Legislature,  the  Convention,  the 
Constitution,  are  all  invested  with  legal  form.  It  is 
true  also,  indeed,  that  this  legal  form  is  mere  form, 
— sheep's  clothing,  beneath  which  there  is  a  wolf. 
It  is  true  also,  that  this  Constitution  is  no  more  the 
act  and  will  of  the  people  of  Kansas  than  of  the 
people  of  England ;  that  the  Territorial  Legislature 
represented  not  them,  but  Missouri ;  that  the  Con 
vention  was  the  mere  tool  of  the  South ;  that  from 
first  to  last,  every  step  in  this  shameful  history  was 
vitiated  by  fraud,  tainted  with  corruption,  often 
stained  with  blood.  But  what  is  that  to  Congress  ? 
The  new  law  declares  that  the  people  of  a  Territory 
shall  be  "  perfectly  free  to  form  and  regulate  their 
own  institutions  in  their  own  way;"  and  the  Presi 
dent,  a  constituent  part  of  the  government  of  the 
Territories,  declares  officially,  that  the  Lecompton 
Constitution  and  Slavery  are  the  institutions  the  peo 
ple  of  Kansas  hare  chosen  to  form,  and  in  a  "way" 
that  is  at  once  legal  and  their  own.  He.  asserts, 
moreover,  that  all  those  who  opposed  those  "institu 
tions,"  and  that  "way,"  are  disaffected  persons, 
rebels,  and  traitors,  unworthy  notice  or  regard.  How 
then  can  Congress  interfere?  It  may  be  said  by 


OF   THE   TERRITORIES.  113 

some,  that  the  Constitution  of  the  United  States  has 
in  it  these  words  :  "  New  States  may  be  admitted  by 
Congress  into  this  Union,"  and  that  the  word  "may" 
would  seem  to  imply  some  discretionary  power  over 
the  subject  in  Congress, — some  right  to  deliberate, 
to  inquire  into  facts,  to  look  through  forms  into  sub 
stance,  to  disregard  technicalities  for  the  sake  of 
merits,  and  finally  to  reject.  But  the  answer  to  this 
is  obvious.  The  Kansas  and  Nebraska  Bill  has  al 
tered  this  clause  of  the  Constitution,  and  for  "may," 
substituted  "shall."  For  all  the  troubles  in  Kansas, 
therefore,  the  responsibility  rests  on  the  President, 
not  on  Congress  ;  for  he  had  legal  power  to  prevent 
them,  from  the  beginning,  which  Congress,  by  the 
new  law,  had  not.  He  could  have  annulled  the  first 
Legislature,  he  could  have  vetoed  its  laws,  he  could 
have  exerted  his  official  influence  in  accordance  with 
the  wishes  of  the  people,  and,  finally,  he  could  have 
refused  to  present  the  Lecompton  Constitution  to 
Congress,  in  accordance  with  the  promise  made  by 
himself  and  by  the  Governor  appointed  by  him. 

Such  is  the  result  of  the  first  experiment  in  Ter 
ritorial  self-government  and  the  practical  effect  of 
the  conflicting  principles  of  the  new  constitutional 
law,  manufactured  by  the  South.  To  be  consistent 
with  its  promises  and  professions,  this  law  should 
10* 


114  THE   LAW 

enable  the  people  of  a  Territory  to  select  their  own 
Governor,  Judges  and  Marshals,  and  thus  have  com 
plete  control  over  their  political  institutions,  for  in 
no  other  way  can  they  be  at  liberty  to  form  and  regu 
late  their  domestic  institutions.  Had  this  been  done, 
the  Territories  would  be  sovereign  indeed,  but  their 
position  would  be  so  anomalous  and  absurd  as  to  defy 
any  ingenuity  to  define  and  understand  it.  Not 
States,  with  a  complete  apparatus  of  government  for 
the  management  of  their  domestic  concerns,  and  at 
the  same  time  a  proportionate  power  over  the  Gene 
ral  Government,  to  which  they  are  also  subjected, 
they  would  be  Independent  Sovereignties,  whose 
people  formed  part  of  another  sovereignty,  to  which 
they  owed  no  obedience,  yet  from  which  they  would 
be  entitled  to  claim  protection.  Independent  Sove 
reignties,  whose  very  soil  was  the  property  of  another 
government,  from  which  their  people  must  buy  and 
derive  title  to  their  land,  which  might  therefore 
withhold  it,  and  must  "make  all  needful  rules  and 
regulations"  respecting  it.  Being  neither  States  nor 
subject  to  the  Federal  Government  as  Territories, 
they  would,  of  course,  have  power  to  coin  money,  to 
lay  imposts,  to  make  treaties  and  war,  to  maintain 
an  army  and  navy,  and  to  establish  any  form  of 
government  they  pleased,  aristocracy,  monarchy,  or 


OF   THE   TERRITORIES.  115 

theocracy  ;  or  any  domestic  institutions  they  pleased, 
matrimony,  slavery,  polygamy,  or  socialism;  or  any 
religion  they  pleased,  Christianity,  Mahometism, 
Mormonism,  or  the  worship  of  Juggernaut.  They 
might  also  stay  out  of  the  Union,  and  maintain  their 
independent  position  so  long  as  they  pleased,  however 
populous  and  powerful  they  became.  Of  all  this, 
Utah  is  an  example.  Its  people  are  truly  sovereign, 
according  to  the  meaning  of  the  Kansas  and  Ne 
braska  Bill.  They  do  really  "form  and  regulate 
their  own  institutions  in  their  own  way."  They 
have  their  own  Governor  and  Legislature,  and  have 
expelled  the  Judges  sent  to  them  by  the  President, 
and  thus  they  have  been  able  to  choose  polygamy 
and  theocracy,  as  their  domestic  institutions.  In  fla 
grant  violation  of  the  true  principles  of  that  bill,  the 
President  has  sent  bayonets  to  reduce  them  to  obedi 
ence,  just  as  he  sent  bayonets  to  reduce  the  people 
of  Kansas  to  obedience.  He  has  a  right  to  do  this 
as  the  bill  now  stands,  because  he  is  an  important 
part  of  the  Government  of  the  Territories ;  but  he  is 
an  institution  they  did  not  choose,  and  over  which 
they  have  no  control,  and  his  power  is  inconsistent 
with  the  spirit  of  the  law,  which,  if  meant  to  be  car 
ried  out  fairly,  should  be  altered  to  conform  to  that 
spirit. 


116  THE    LAW 

It  would  be  better,  however,  to  repeal  it  altogether. 
The  old  law  worked  well.  Under  it  there  was  no 
complaint.  Under  it  many  flourishing  States  have 
been  admitted  into  the  Union  without  trouble  or  dis 
turbance,  in  or  out  of  Congress.  It  is  undoubtedly 
true  that  Congress  might,  if  disposed  to  abuse  its 
power,  vexatiously  interfere  in  the  affairs  of  a  Ter 
ritory,  or  unreasonably  refuse  to  admit  it  as  a  State. 
So  might  Congress,  by  a  similar  abuse,  misgovern 
and  oppress  the  District  of  Columbia.  Yet  the  peo 
ple  of  the  District,  as  well  as  of  the  Territories, 
have,  on  the  whole,  been  satisfied.  They  have,  on 
the  whole,  been  governed  justly.  Their  interests, 
their  wishes,  their  feelings  have  been  considered  and 
respected.  But  what  is  the  security,  it  may  be 
asked,  that  this  shall  continue  ?  The  best  security 
the  case  admits  of,  and  the  only  one :  the  principles 
of  liberty  on  which  our  government  is  founded,  and 
the  public  opinion  of  the  country.  Change  these, 
and  the  security  vanishes  for  the  District,  the  Ter 
ritories,  and  the  States.  So  long  as  the  people  are 
animated  by  a  republican  spirit,  Congress  will  repre 
sent  that  spirit,  and  govern  the  Territories  in  a  re 
publican  manner;  that  is  to  say,  according  to  the 
wishes  of  their  people.  The  people  of  the  Territories, 
though  not  represented  in  Congress  directly,  are  vir- 


OF   THE   TERRITORIES.  117 

tually  represented,  because  the  great  constituency  of 
the  country  has  rights,  interests,  and  hopes  similar  to 
their  own,  and  should  these  be  injured  by  Congress, 
would  make  common  cause  with  them,  and  through 
the  press  and  the  ballot-box,  exercise  its  power  to 
redress  the  wrong,  as  it  is  doing  now.  Power  is  from 
its  very  nature  liable  to  abuse.  If  surrounded  by 
too  many  restraints  to  prevent  misgovernment,  it 
ceases  to  be  power.  The  chances  of  abuse  are  not 
diminished  but  increased,  by  placing  the  control  of 
the  Territories  in  the  hands  of  the  President,  to 
whom  the  Kansas  and  Nebraska  Bill  gives  it,  instead 
of  leaving  it  in  Congress,  to  whom  it  was  intrusted 
by  the  Constitution. 

The  just  and  wise  management  of  the  Territories 
in  accordance  with  their  wishes  and  their  true  in 
terests,  is  the  object  to  be  attained,  all  will  agree. 
It  can  only  be  attained  by  some  sort  of  government. 
That  which  the  Constitution  provided  and  here 
tofore  in  use,  gave  to  the  Territories  executive  and 
judicial  officers,  appointed  by  the  President,  a  local 
legislature,  whose  acts  were  subject  to  the  revision 
of  Congress,  and  a  delegate  in  Congress,  to  make 
known  the  wishes  of  the  people.  This  government 
was  symmetrical  and  consistent.  The  Territories 
were  subjected  to  a  government  which  represented 


• 


118  THE    LAW 

the  sentiment  and  opinion  of  the  Union,'  whilst 
ample  means  were  provided  for  the  expression  of 
their  own  sentiment  and  opinion.  Even  to  this 
mild  control  they  were  subjected  only  for  a  short 
time.  This  government  was  successful.  The  Ter 
ritories  have  not  complained,  neither  has  the  Dis 
trict  of  Columbia,  placed  under  a  more  rigid  rule, 
and  placed  under  it  forever.  The  Kansas  and 
Nebraska  Bill  has  abolished  this  government.  It 
professes  to  erect  in  its  stead  the  absolute  Bove- 
reignty  of  the  Territories,  it  promises  to  their 
people  self-government,  yet  it  does  not  perform  its 
promise.  It  withdraws  them  from  the  power  of 
Congress,  yet  leaves  them  to  the  power  of  the 
President.  It  takes  away  from  them  republican 
and  gives  them  monarchial  government.  This  go 
vernment  has  also  been  tried,  but  it  has  not  suc 
ceeded.  On  the  contrary,  the  President  is  now, 
and  has  been  for  more  than  a  year,  employed  in 
compelling  the  people,  and  by  military  force,  to 
submit  to  laws  and  to  accept  institutions  against 
their  earnest  protest  and  remonstrance.  To  carry 
out  the  meaning  and  fulfil  the  promise  of  the  new 
law,  the  power  of  the  President  should  also  be 
withdrawn  from  the  Territories.  They  would  then 
be  really  sovereign,  but  they  would  also  be  inde- 


OF   THE   TERRITORIES.  119 

pendent  nations ;  a  position  wholly  inconsistent  with 
the  ownership  of  their  soil  by  the  Government  of 
the  Union,  and  with  the  fact  that  they  form  part 
of  this  Nation.  This  plan  has  also  been  tried, 
practically  though  not  theoretically,  and  the  result 
has  been,  Brigham  Young  and  the  rebellion  in 
Utah,  and  another  occasion  for  the  President  to 
employ  soldiers  to  enforce  his  authority.  Which 
then  of  these  three  plans  ought  to  be  preferred, 
the  one  sanctioned  by  time,  success,  and  the  Con 
stitution,  or  either  of  the  two  which  have  failed  ? 

Had  the  Constitution  remained  unaltered  there 
would  have  been  no  trouble  in  Kansas.  It  would 
not  have  been  thrown  open  as  an  arena  for  sectional 
strife.  Its  Legislature  would  not  have  been  elected 
by  Missouri  votes,  or,  if  it  had,  Congress  would 
have  declared  the  election  void.  The  infamous 
Kansas  laws  would  never  have  been  enacted,  or, 
if  they  were,  Congress  would  have  repealed  them. 
The  people  would  have  voted  for  the  Convention 
that  made  the  Constitution,  and  Kansas  would 
have  been  admitted  as  a  Free  State,  without  oppo 
sition  or  excitement,  because  its  soil  and  climate 
fit  it  for  free  labor,  and  because  its  people  pre 
fer  free  labor.  Why  then  was  the  Constitution 
altered?  For  the  sake  of  the  Territories?  They 


120  THE    LAW 

did  not  ask  for  the  change.  It  was  not  at  the 
instance  of  the  people  of  Kansas  that  the  Kansas 
and  Nebraska  Bill  was  passed.  All  the  Terri 
tories  were  tranquil  and  content  under  the  old 
law.  The  change  was  made  by  the  South,  with 
the  aid  of  the  Northern  Democracy,  for  Southern 
objects.  Its  purpose  was  to  make  Kansas  a  Slave 
State, — an  impossibility;  as  a  means  of  realizing 
the  Southern  dream  of  equality  with  the  North, — 
another  impossibility.  It  was  obvious,  from  the  first, 
that  Kansas  never  could  become  a  Slave  State,  and 
it  is  still  more  obvious  that  the  power  of  the  South 
in  this  Union  can  never  equal  that  of  the  North. 
Political  power  depends  on  wealth,  numbers,  and 
the  diffusion  of  comfort  and  education  among  the 
masses.  In  all  these  conditions,  the  superiority 
of  the  North,  already  so  vast,  is  growing  rapidly 
greater  every  day.  Hopelessly  and  so  long  as 
this  Union  lasts,  the  South  is  doomed  to  be  a 
minority,  but  not  on  that  account  to  weakness  or 
degradation.  Destroy  sectional  animosity,  banish 
the  mischievous  idea  that  there  is  a  North  or  a 
South,  and  the  inferiority  disappears.  So  long  as 
the  South  is  able  to  secure  the  friendship  and  sup 
port  of  a  great  party  in  the  North,  and  this  it  has 
always  done,  it  may  defend  its  rights  and  often 


OF  THE  TERRITORIES.  121 

control  the  Government,  as  it  now  does.  It  con 
trols,  at  this  moment,  the  Executive,  the  Legisla 
ture,  the  Judiciary, — the  sword  and  the  purse  of  the 
Nation, — and  this,  too,  in  the  midst  of  sectional 
excitement  and  division.  Weak  and  a  minority 
though  it  be,  it  is  defended  by  the  Constitution, 
by  the  Northern  Democracy,  and  not  by  it  alone, 
but  by  the  national  sentiment  of  the  great  mass 
of  the  Northern  people.  Through  these  it  is  safe, 
it  is  triumphant,  it  reigns.  Without  these  it  is 
feeble,  defenceless,  dependent.  With  these,  though 
it  may  not  always  rule,  it  must  always  be  secure ; 
without  them  it  must  submit  to  be  governed  and 
perhaps  oppressed.  Disunion  would  be  no  remedy. 
Disunion  is  not  separation.  The  South  cannot  put 
an  ocean  between  its  weakness  and  the  powerful 
North,  which  must  ever  remain  at  its  side,  either 
in  the  Union  or  out  of  the  Union,  either  a  friend 
or  an  enemy;  and,  if  an  enemy,  one  that  would 
find  an  ally  on  every  farm,  on  every  plantation,  at 
every  fireside  in  the  South.  The  Union,  the  Con 
stitution,  and  the  friendship  of  the  North;  these 
are  the  pillars  on  which  rest  the  peace,  the  safety, 
the  independence  of  the  South.  Destroy  them  and 
the  South  may  read  its  fate  in  the  history  of  the 

11 


122  THE    LAW 

Italian  Republics,  which  is  a   history  of  Southern 
weakness,  opposed  to  Northern  strength. 

The  extraordinary  thing  is,  that  for  some  years 
past,  the  South  has  been  and  now  is  sedulously 
employed  in  undermining  this  triple  foundation  of 
its  power  and  safety.  Its  extravagant  pretensions, 
its  excesses,  its  crimes,  are  rapidly  cooling  the 
friendship  of  the  North,  converting  it,  indeed,  into 
positive  enmity.  Its  leading  politicians  are  ever 
plotting  and  threatening  disunion.  The  time  may 
come  when  disunion  will  be  proffered  to  them  from 
the  North,  not  as  a  vague  and  passionate  threat, 
but  as  a  positive  and  well-considered  plan,  backed 
by  a  force  of  public  opinion  which  nothing  can 
resist.  They  are  also  repealing  the  Constitution, 
introducing  new  doctrines  into  our  national  law — 
doctrines  contrived  to  serve  a  special  and  immediate 
purpose,  but  which,  once  established,  may  plague 
their  inventors.  Ideas,  principles,  are  sharp  tools 
to  play  with,  and  he  who  uses  them  has  need  of  a 
mind  that  can  see  far  into  the  future  and  calculate 
remote  consequences.  This  sort  of  mind  was  pos 
sessed  by  those  who  framed  our  Constitution  for 
the  union  and  safety,  the  happiness  and  prosperity, 
the  greatness  and  glory,  of  both  North  and  South. 
The  principles  they  established  have  proved  their 


OF   THE   TERRITORIES.  123 


long-sighted  wisdom,  both  in  the  success  which  has 
attended  the  observance  of  those  principles  and  the 
disasters  which  have  followed  a  departure  from 
them.  The  Southern  politicians  who  have  since 
dared  to  meddle  with  the  work  of  these  sages,  have 
not  improved  it ;  and  the  new  doctrines  they  have 
established  as  instruments  to  carry  out  their  narrow 
views  and  sectional  policy,  will -be  turned  against 
them  with  fatal  effect.  This  very  Kansas  and  Ne 
braska  Bill  is  a  case  in  point,  to  show  how  an 
unskilful  engineer  may  be  hoisted  by  his  own  pe 
tard.  Its  immediate  object  was  to  make  Kansas  a 
slave  State,  and  thus  gain  two  Senators  for  the 
South.  It  was  expected  that  a  majority  of  the 
people  of  Kansas  would  be  in  favor  of  slavery ;  it 
was  feared  that  a  majority  of  Congress  might  be 
opposed  to  slavery.  If,  therefore,  Kansas  could  be 
freed  from  the  control  of  Congress,  all  would  be 
safe.  But  the  event  turned  out  exactly  the  reverse 
of  this,  and  for  such  a  contingency  the  artificers  of 
the  bill  forgot  to  provide.  As  a  consequence,. they 
found  that  their  machine  would  not  work.  But 
though  defeated,  they  are  not  overcome.  Two 
Democratic  Senators  can  be  secured  by  forcing 
upon  Kansas  the  Lecompton  Constitution.  They 
have  the  President,  his  message,  and  his  patronage, 


124  THE   LAW 

and  their  hitherto  faithful  and  well-drilled  phalanx 
of  Northern  Democrats  in  Congress.  But  here 
another  unexpected  misfortune  has  occurred,  the 
consequence  of  another  blunder.  They  left  entirely 
out  of  their  calculations  the  fact  that  men,  even 
Northern  Democrats,  have  a  conscience ;  a  mistake 
never  made  by  those  who  framed  the  old  law. 
Northern  Democrats  have  long  been  growing  luke 
warm  to  the  cause  of  the  South,  disgusted  by  late 
outrages,  and  this  disgust  has  at  length  shown  itself 
in  open  revolt.  The  very  author  of  the  Kansas  and 
Nebraska  Bill  itself,  so  lately  a  trusted  and  chosen 
leader  among  Southern  politicians,  he  who  had 

"  Spoke  like  thunder  on  their  side, 
Been  sworn  their  champion,  bidding  them  depend 
Upon  his  stars,  his  fortune,  and  his  strength," 

has  suddenly  deserted  them  and  joined  their  ene 
mies.  His  example  has  been  followed  by  other 
chiefs  high  in  influence  and  renown,  whilst  the 
Democratic  party  throughout  the  North  is  leaving 
them  by  thousands ;  and  it  is  manifest  that  this 
great  ally,  with  whom  they  have  so  often  marched 
to  victory,  can  no  longer  be  depended  on.  Ere 
long  the  South  is  likely  to  be  left  with  no  other 


OF   THE   TERRITORIES.  125 

defence  but  the  Union  it  has  weakened   and  the 
Constitution  it  has  mutilated  and  defaced. 

But  the  Kansas  and  Nebraska  Bill  was  not  in 
tended  merely  to  put  slavery  into  Kansas.  It  is  a 
weapon  fashioned  for  other  and  richer  fields  of  con 
quest.  Texas  is  to  be  divided,  so  as  to  make  more 
Southern  States  and  Senators ;  Nicaragua  is  to  be 
annexed;  and  already,  in  the  vivid  and  creative 
imagination  of  the  South,  Cuba  looms  up  above  the 
horizon,  rich  in  negroes,  in'  the  countless  treasures 
of  an  exuberant  soil,  and  in  votes.  In  all  these, 
slavery  is  already  planted  and  growing  with  tropical 
luxuriance,  not  as  a  mere  abstract  right,  existing 
only  in  contemplation  of  Dred  Scott  case  law,  but 
as  an  actual  fact.  Slaves  are  there  and  masters, 
and  these  masters,  if  allowed  "  to  form  and  regulate 
their  own  domestic  institutions  in  their  own  way," 
will  choose  slavery  and  slaves,  beyond  a  doubt.  But 
"whoso  diggeth  a  pit  shall  fall  therein,  and  he  that 
sctteth  a  trap  shall  be  taken  therein."  Even  here, 
it  may  and  most  probably  will  happen,  that  the 
Kansas  and  Nebraska  Bill  will  disappoint  its 'inven 
tors.  When  the  day  comes  for  the  division  of  Texas, 
for  the  annexation  of  Nicaragua  and  Cuba,  the 
chances  are,  that  the  President  of  the  United  States 
will  be  a  Northern  man,  not  with  Southern,  but 


126  THE   LAW 

Northern  principles.  By  the  new  law,  the  President 
is  a  part,  and  a  most  influential  part,  of  the  govern 
ment  of  a  Territory,  and  what  has  occurred  in  Kan 
sas,  may  again  occur  ;  the  people  on  one  side,  the 
President,  his  patronage,  and  his  army  on  the  other, 
and  we  may  then  see  the  instructive  drama  of  the 
present  moment  repeated.  A  minority  of  the  peo 
ple,  supported  by  the  President,  presenting  to  Con 
gress  a  Constitution  prohibiting  slavery ;  that  Con 
stitution  being  the  work  of  a  packed  Convention, 
and  a  Legislature  elected  by  fictitious  votes,  and 
bolstered  up  by  Executive  corruption.  A  minority 
insisting  on  legal  forms,  and  demanding  instant  ad 
mission  as  a  free  State,  though  nine-tenths  of  the 
people  who  are  not  slaves  are  masters  of  slaves,  and 
earnestly  insist  on  their  right  to  choose  their  own 
institutions,  earnestly  appeal  to  a  fettered  and  power 
less  Congress  for  justice  and  protection.  What 
would  the  South  say  to  that  ?  And  what  would  they 
say  to  a  President  who  should  urge  upon  Congress 
to  accept  such  a  Constitution,  who  should  denounce 
this  protesting  majority  as  rebels  and  traitors,  and 
ask  for  troops,  to  enable  him  to  force  upon  them  a 
free  Constitution  against  their  will. 

The  makers   of  the  Kansas   and  Nebraska  law 
were  clumsy  workmen.     They  forgot  to  provide  for 


OF   THE   TERRITORIES.  127 

the  case  of  an  Anti-slavery  President.     They  will, 
perhaps,  learn  wisdom  by  experience. 

"To  wilful  men, 

The  injuries  that  they  themselves  procure, 
Must  be  their  school-masters." 

Those  who  framed  the  Constitution,  and  laid  the 
foundation  of  this  Union,  understood  their  business 
better.  That  Constitution  was  intended  to  protect 
the  South,  and  has  protected  it.  Southern  politi 
cians  cannot  improve  it.  For  their  own  sakes,  they 
had  better  let  it  alone. 

CECIL. 


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